Opinion
EDCV19-2052-SVW(AGR)
10-01-2021
CARLOS R. BROCATTO, Plaintiff, v. DR. M. FAROOK, Defendant.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
STEPHEN V. WILSON United States District Judge
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, the records on file, the Report and Recommendation of the United States Magistrate Judge, the Objections and the Response. Further, the Court has engaged in a de novo review of those portions of the Report to which Plaintiff has objected. The Court accepts the findings and recommendation of the magistrate judge.
In his objections, Plaintiff states that he has since found out that Defendant Milne, the nurse, did not work on the date in question and did not treat him. (Obj. at 4.) Accordingly, there is no basis for her liability. Plaintiff attaches the medical record, which indicates that the registered nurse who treated him was RN Reutov. The medical records do not provide a factual basis for liability on the part of RN Reutov. (Id. at 8-9 ("send to RUHS urgent state vehicle").) Leave to amend would be futile.
Plaintiff argues that Dr. Farook's failure to correct the record shows deliberate indifference. However, on a motion to dismiss, the court's inquiry is generally limited to the allegations in the operative complaint. At this stage of the proceedings, Defendants do not submit evidence to correct the complaint.
IT IS ORDERED that Defendants' motion to dismiss the First Amended Complaint is granted without leave to amend.