Opinion
Case No. 1:19-cv-01064-LJO-SAB (PC)
10-21-2019
VICTOR MARTINEZ AZDAR, Plaintiff, v. WRESTON, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATION, AND DISMISSING ACTION FOR FAILURE TO STATE A COGNIZABLE CLAFM FOR RELIEF [ECF Nos. 10, 11]
Plaintiff Victor Martinez Azdar is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On September 19, 2019, the Magistrate Judge recommended that the instant action be dismissed for failure to state a cognizable claim for relief. The Findings and Recommendation was served on the Plaintiff and contained notice that objections were to be filed within twenty-one days. Plaintiff filed objections on October 17, 2019. In his objections, Plaintiff contends that his claim arises under the Eighth Amendment, not the Fourteenth Amendment. However, because the first amended complaint sought relief against Defendants who are all employed at Kings County Jail Medical Facility, while he was a pretrial detainee, such claim arises under the Fourteenth and not the Eighth Amendment. In any event, for the same reasons explained in the Magistrate Judge's Findings and Recommendation, Plaintiff's deliberate indifference claim would fail under the Eighth Amendment standard. See Gordon v. County of Orange, 888 F.3d 1118, 1124-25 n.4 (9th Cir. 2018) (The Ninth Circuit held that pretrial detainee's claims for inadequate medical care arises under the Fourteenth Amendment due process clause and "must be evaluated under an objective deliberate indifference standard." This objective deliberate indifference standard is less stringent than the standard applicable under the Eighth Amendment).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff's objections, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
Based on the foregoing, it is HEREBY ORDERED that:
1. The Findings and Recommendation filed on September 19, 2019, is adopted in full; and
2. The instant action is dismissed for failure to state a cognizable claim for relief. IT IS SO ORDERED.
Dated: October 21 , 2019
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE