Opinion
Case No.: 16cv736-JAH (JLB)
07-21-2017
LARRY SALAS CDCR No. AY-1376 Plaintiff, v. MILISSA BURNS (ERRONEOUSLY SUED AS "RN BURNS") Defendants
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [DOC NO. 34 ] AND DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT [DOC NO. 6] AS TO ALL DEFENDANTS
BACKGROUND
On March 28, 2016, Plaintiff Larry Salas, a state prisoner proceeding pro se ("Plaintiff"), filed a civil rights complaint against Defendants San Diego County Jail & Medical and Milissa Burns ("Burns") (collectively, "Defendants"), alleging that Plaintiff was denied access to "adequate and competent medical treatment[,]" in violation of 42 U.S.C. § 1983 ("§ 1983"). See Doc. No. 1. Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) at the time of filing. Instead, he filed a motion for leave to proceed in forma pauperis ("IFP"), pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. On April 8, 2016, the Court granted Plaintiff's IFP motion, but dismissed Plaintiff's Complaint for failing to state a claim. See Doc. No. 3.
The Court found that the Complaint named improper Defendants, and contains "minimal allegations as to whom [Plaintiff] claims violated his constitutional rights[, and]... contains no facts sufficient to show that any individual acted with deliberate indifference... by knowing of and disregarding an[y] excessive risk to his health and safety." (internal citations omitted). The Court granted Plaintiff forty-five days leave to amend the Complaint. --------
On April 15, 2016, Plaintiff filed an amended Complaint ("FAC"), naming the Defendants in the original Complaint, as well as the San Diego Sheriff's Department. See Doc. No. 4. On May 24, 2016, the FAC was dismissed for failure to state a claim. See Doc. No. 5. Plaintiff was granted forty-five days leave to file a second amended Complaint ("SAC"). On July 5, 2016, Plaintiff filed his SAC naming Doctor John Doe and RN Burns as defendants. See Doc. No. 6. On July 25, 2016, the Court dismissed the Complaint against Doctor John Doe for failure to state a claim. See Doc. No. 7. The Court also directed the U.S. Marshal to effect service of the SAC on Defendants RN Burns, San Diego County Jail & Medical, and San Diego Sheriff's Department. Id. Summons was returned executed as to all Defendants on July 25, 2016. See Doc. No. 8. On August 19, 2016, Plaintiff filed two freestanding motions to appoint counsel and compel discovery, which were both denied on September 7, 2016. See Doc. Nos. 12, 14, 17, 18.
On September 7, 2016, Defendant Burns filed the instant motion to dismiss the SAC with prejudice, contending that Plaintiff does not, and cannot, state a cognizable § 1983 claim because (1) there are insufficient factual allegations to show that Plaintiff had a serious medical need; (2) there is no allegation that Burns knew of and disregarded an excessive risk to Plaintiff's health and safety based on the existence of a serious medical condition; and (3) the case citations and legal arguments in Plaintiff's Complaint cannot be admitted or denied by Defendant Burns, rendering them immaterial and inappropriate. See Doc. No. 16 at 1. On December 5, 2016, Plaintiff filed an opposition to Defendant's motion to dismiss the SAC. See Doc. No. 30.
On April 7, 2017, pursuant to 28 U.S.C. § 636(b)(1), the Honorable Judge Jill L. Burkhart, United States Magistrate Judge, submitted a report and recommendation ("Report") to this Court recommending that Plaintiff's SAC be dismissed without prejudice and with leave to amend as to Defendant Burns for failure to state a claim, and denying Defendant Burns' motion to strike case citations and legal argument. See Doc. No. 34. Judge Burkhart found that Plaintiff's deliberate indifference claim was insufficiently plead. Id. Pursuant to Fed. R. Civ. P. 72(b)(2), objections to the Report were due no later than May 1, 2017. On May 1, 2017, Plaintiff filed a request for an extension of time to object to the Report. See Doc. No. 36. On May 3, 2017, the Court granted Plaintiff's motion, and extended the deadline for filing objections to July 3, 2017. See Doc. No. 37. No objections were timely received. Accordingly, for the reasons set forth below, this Court ADOPTS the Magistrate Judge's Report in its entirety, and DISMISSES Plaintiff's SAC as to Defendant Burns.
DISCUSSION
The district court's role in reviewing a magistrate judge's report and recommendation is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When a party objects to the magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3).
When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (stating that "de novo review of a [magistrate judge's report and recommendation] is only required when an objection is made"); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise"). This rule of law is well established within the Ninth Circuit and this district. See Hasan v. Cates, No. 11-cv-1416, 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in its entirety, and without review, a report and recommendation because neither party filed objections to the report despite having the opportunity to do so); accord Ziemann v. Cash, No. 11-cv-2496, 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. Poulos, No. 08-cv-1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.).
Here, the record reflects that no party filed objections to the Report. Thus, in the absence of any objections, the Court ADOPTS the Report. For the reasons stated in the Report, which is incorporated herein by reference, the SAC is DISMISSED WITH PREJUDICE as to Defendant Milissa Burns. The Clerk of Court shall enter judgment reflecting the foregoing.
IT IS SO ORDERED. DATED: July 21, 2017
/s/_________
JOHN A. HOUSTON
United States District Judge