Opinion
No. ED CV 14-2281-JGB (PLA)
12-14-2015
WALTER HARRISON, Plaintiff, v. R.N. KALIAN, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
On October 15, 2015, the United States Magistrate Judge issued an Interim Report and Recommendation ("Interim Report and Recommendation" or "Interim R&R"), recommending that plaintiff's Third Amended Complaint be dismissed, in part, without leave to amend, and, in part, with leave to amend. On November 2, 2015, plaintiff filed Objections to the Interim R&R. ("Objections" or "Obj."). / / / /
II.
DISCUSSION
In his Objections, plaintiff objects that the allegations he raised in the TAC are sufficient to hold defendant Lee "liable for his supervisory defenciencies [sic]." (Objections at 1). Plaintiff, however, merely argues in his Objections that defendant Lee "failed to ensure that plaintiff received adequate medical treatment by failing to adequately supervise, and train his staff," and that plaintiff would not have "suffered constitutionally inadequate medical care" if Lee had "properly trained and supervised" defendants Murakonda and Kalian. (Id. at 4 (internal quotation marks omitted)). As set forth in the Interim Report and Recommendation, such allegations are insufficient to establish Lee's "knowledge of and acquiescence in unconstitutional conduct by his or her subordinates." See Starr v. Baca, 652 F.3d at 1207.
Plaintiff also argues that his allegations in the TAC are sufficient to state an Eighth Amendment claim against defendants Murakonda and Kalian. In his Objections, plaintiff asserts that his "unconstitutional pain began on November 7, 2013," after the emergency medical treatment he received, and that his "many medical request forms" were "met with derogatory remarks by the defendants." (Objections at 7). The TAC, however, alleges that his symptoms "began November 7, 2013, followed by an emergency removal of his appendix" and the removal of gall stones. (TAC at 3 (emphasis added)). Plaintiff's conclusory allegations that he "attempted numerously to seek help from defendants Murakonda and Kalian," and that his "many requests for medical care" were "met with derogatory remarks" from defendants (TAC at 4-5) lack specific factual allegations from which a reasonable inference could be drawn that these defendants were aware of facts from which they could infer that a substantial risk of serious harm existed, and that they also drew such an inference. The Court, however, agrees with the Magistrate Judge that plaintiff should be permitted to attempt to plead additional factual allegations against defendants Murakonda and Kalian.
Accordingly, after full consideration of the arguments and allegations in plaintiff's Objections, the Court concludes that nothing in plaintiff's Objections alters the conclusions reached in the Interim R&R.
III.
CONCLUSION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Third Amended Complaint, the other records on file herein, the Magistrate Judge's Interim Report and Recommendation, and plaintiff's Objections to the Interim Report and Recommendation. The Court has engaged in a de novo review of those portions of the Interim Report and Recommendation to which objections have been made. The Court accepts the recommendations of the Magistrate Judge.
ACCORDINGLY, IT IS ORDERED:
1. The Interim Report and Recommendation is accepted.
2. Plaintiff's Third Amended Complaint is dismissed with prejudice and without leave to amend as to his federal civil rights claims against defendant Lee, and his claims for monetary damages against defendants Murakonda and Kalian in their official capacities.
3. Plaintiff's Third Amended Complaint is dismissed with leave to amend as to his Eighth Amendment claims for monetary damages against defendants Murakonda and Kalian in their individual capacities.
4. Plaintiff is ordered, if he chooses to proceed with this action, to file a Fourth Amended Complaint correcting the deficiencies in his Eighth Amendment claims against defendants Murakonda and Kalian within 30 days of the date of this Order.
5. The clerk shall serve this Order on all counsel or parties of record. DATED: December 14 , 20 15
/s/_________
HONORABLE JESUS G. BERNAL
UNITED STATES DISTRICT JUDGE