Opinion
1:21-cv-0611-NONE-JLT
09-21-2021
LEROY FREEMAN, Plaintiff, v. KEN CLARK, et al., Defendants.
ORDER ADOPTING IN FULL THE FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANTS' MOTION TO DISMISS (DOC. NOS. 7, 14)
Leroy Freeman was incarcerated at California State Prison-Corcoran when he was diagnosed with a condition that required surgical intervention. Plaintiff asserts that after his surgery, he did not receive proper care at CSP-Corcoran, which caused him to suffer permanent paralysis. Plaintiff seeks to hold Warden Ken Clark; Celia Bell, the CEO of Health Care at CSP-Corcoran; and unidentified medical providers liable for violations of his civil rights arising under the Eighth Amendment. (Doc. No. 1.)
Defendants assert plaintiff's allegations are insufficient to state a claim, and the claims plaintiff raised against Clark and Bell are barred. (Doc. No. 7.) The magistrate judge found the claims against Clark and Bell in their official capacities were barred by the Eleventh Amendment, but may be raised against the defendants in their individual capacity. (Doc. No. 14 at 7-12.) Therefore, the magistrate judge recommended the claims against Clark and Bell be dismissed without leave to amend to the extent those defendants were sued their official capacity. In addition, the magistrate judge recommended plaintiff be granted leave to amend to state his claims against the defendants in their individual capacities. (Id. at 12.)
The parties were given fourteen days to file any objections to the recommendations. (Doc. No. 14 at 12.) The parties were “advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.” (Id., citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014)). Thus, any objections were to be filed no later than August 2, 2021. To date, no objections have been filed by either party.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist, 708 F.2d 452, 454 (9th Cir. 1983), this court conducted a de novo review of the case. Having carefully reviewed the file, the court finds the findings and recommendations are supported by the record and proper analysis.
Accordingly:
1. The findings and recommendations dated July 19, 2021 (Doc. No. 14) are adopted in full;
2. The claims brought against Clark and Bell in their official capacities are dismissed without leave to amend;
3. The claims brought against Clark and Bell in their individual capacities are dismissed with leave to amend; and
4. Plaintiff shall file any amended complaint within thirty days of the date of service of this order.
IT IS SO ORDERED.