Iniguez v. Newton

Filing 12

ORDER Adopting 11 Report and Recommendation; and Granting Defendant's 6 Motion to Dismiss. The R&R is modified to include the reasoning set forth in this order. So modified, the R&R is adopted and Dr. Newton's motion to dismiss is granted. This action is dismissed with prejudice. Signed by Judge Larry Alan Burns on 9/14/2017. (All non-registered users served via U.S. Mail Service)(lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE INIGUEZ,

Case No.: 16cv2601-LAB (PCL)
Plaintiff,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION; AND

PATRICIA NEWTON ,

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

Defendant.

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Jose Iniguez, a prisoner in state custody, filed a complaint bringing claims under

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42 U.S.C. ' 1983. The matter was referred to Magistrate Judge Peter Lewis for a report

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and recommendation. Defendant Patricia Newton then moved to dismiss.

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On August 9, Judge Lewis issued his report and recommendation (the “R&R”),

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recommending that the motion to dismiss be granted, and ordering that any objections be

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filed by August 23, 2017. Since then, neither party has filed any objections nor sought

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additional time in which to do so.

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A district court has jurisdiction to review a Magistrate Judge's report and

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recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “The district judge must

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determine de novo any part of the magistrate judge's disposition that has been properly

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objected to.” Id. “A judge of the court may accept, reject, or modify, in whole or in part,

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the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
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16cv2601-LAB (PCL)

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This section does not require some lesser review by the district court when no objections

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are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The “statute makes it clear that

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the district judge must review the magistrate judge’s findings and recommendations de

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novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc), (emphasis in the original).

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The statutory provision does not require that the district court conduct some lesser

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review when no objections are filed. Thomas, 474 U.S. at 149-50 (“It does not appear

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that Congress intended to require district court review of a magistrate's factual or legal

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conclusions under a de novo or any other standard when neither party objects to those

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findings”).

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Although the Court is not required to review the R&R, it has reviewed the R&R

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and finds it to be correct. First, the Court ADOPTS the R&R’s unobjected-to factual

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findings. (See Docket 11 at 2:1–4:12.) And in addition to the R&R’s analysis, the Court

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adds the following.

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Iniguez has brought a claim against Newton for retaliation against him for filing an

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administrative appeal. The two alleged instances of retaliation are Dr. Newton’s refusal

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to approve two of the four accommodations he requested, and her refusal to provide him

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with a second surgery. The R&R describes the first as “counterintuitive,” (R&R at 9:27)

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which the Court construes to mean his claim is implausible. In other words, approving

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two accommodations and denying two others does not plausibly suggest an intent to

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retaliate. See Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). Dr. Newton’s refusal to refer

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Iniguez for a surgery he himself had twice refused also does not plausibly show

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retaliation. See id. Furthermore, both are consistent with legitimate penological interests,

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and Iniguez does not allege facts suggesting otherwise. See Watison v. Carter, 668 F.3d

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1108, 1115 (9th Cir. 2012) (to state a First Amendment retaliation claim, a prisoner must

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allege, among other things, the absence of a legitimate penological reason for the alleged

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adverse actions).

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///
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16cv2601-LAB (PCL)

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Iniguez also brought an Eighth Amendment claim for deliberate indifference to

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serious medical needs. In addition to the other requirements noted in the R&R, an Eighth

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Amendment claim for deliberate indifference has a subjective component, see Farmer v.

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Brennan, 511 U.S. 825, 834 (1994), which is missing here. Specifically, Iniguez can

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prevail only if Dr. Newton knew of and disregarded a substantial risk of harm to him:

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“the official must both be aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and [she] must also draw the inference.” Id. at 837

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(emphasis added). Here, the complaint shows that Dr. Newton thought Iniguez did not

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need all of the treatments and accommodations he was requesting. Others agreed, at least

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in part; the Appeals Coordinator’s Office denied Iniguez’s request for accommodations,

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and Dr. Wehrli did not recommend the mobility vest Iniguez claims he needed.

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Furthermore, Dr. Newton did offer some treatment and accommodation: she

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referred him for both orthopedic shoes and medications to help control his pain. The fact

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that Dr. Newton and Dr. Wehrli disagreed in part does not give rise to an Eighth

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Amendment claim. The choice of what forms of treatment are indicated is “a classic

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example of a matter for medical judgment.” Estelle v. Gamble, 429 U.S. 97, 107 (1976).

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A difference of opinion on such matters between a prisoner and a physician, or even

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between physicians, does not amount to deliberate indifference. Hamby v. Hammond,

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821 F.3d 1085, 1092 (9th Cir. 2016).

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The R&R is modified to include the reasoning set forth in this order. So modified,

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the R&R is ADOPTED and Dr. Newton’s motion to dismiss is GRANTED. This action

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is DISMISSED WITH PREJUDICE.

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IT IS SO ORDERED.
Dated: September 14, 2017

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_________________________________

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Larry Alan Burns
United States District Judge

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16cv2601-LAB (PCL)