Opinion
No. CV 14-5716-PSG (PLA)
03-18-2016
CLEON W. GILLIAM, Plaintiff, v. E. FRANCES, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE IN SECOND REPORT AND RECOMMENDATION
I.
INTRODUCTION
On January 22, 2016, the United States Magistrate Judge issued a Second Report and Recommendation ("R&R"), recommending that defendants' Motion to Dismiss be granted, and that plaintiff's claims be dismissed, some with leave to amend and some without leave to amend. On March 16, 2016, following an extension of time, plaintiff filed Objections to the R&R.
II.
DISCUSSION
In his Objections, plaintiff objects: (1) to an earlier denial of his request to appoint a pro bono attorney; and (2) that his claims against defendant Frances are adequate because his affidavit and medical records show that Frances knew on September 16, 2013, that plaintiff's leg was defective and she "duped plaintiff" at that time by not telling him that she was reclassifying him.
First, plaintiff's Motion for Appointment of Pro Bono Counsel was denied by the previously assigned magistrate judge without prejudice on March 26, 2015. (See Doc. Nos. 27-28). Plaintiff did not again raise his request to have counsel appointed until he filed his Objections. If plaintiff would like to have a specific pro bono counsel represent him (see Objections, Attachment), he should ask that counsel to file a substitution of attorney form prior to filing a Third Amended Complaint.
Second, in his Objections, plaintiff argues that the Magistrate Judge should have considered "the evidence and affidavit of plaintiff" filed in Opposition in determining whether to deny defendants' Motion. (Objs. at 2-3). As set forth in the R&R, although the Court may not look outside the pleadings in deciding a motion to dismiss for failure to state a claim, the Magistrate Judge did consider the additional factual allegations plaintiff raised in his Opposition in deciding that plaintiff should be granted leave to amend. (See R&R at 6, 12). Because the facts that plaintiff relies upon in his Objections are not set forth in the SAC, and the Magistrate Judge has recommended that he be granted leave to amend to add such facts, plaintiff's Objections do not impact on this Court's determination in deciding to accept the recommendation.
III.
CONCLUSION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Complaint, the other records on file herein, the Magistrate Judge's Second Report and Recommendation, and plaintiff's objections to the Second Report and Recommendation. The Court has engaged in a de novo review of those portions of the Second Report and Recommendation to which objections have been made. The Court accepts the recommendations of the Magistrate Judge.
ACCORDINGLY, IT IS ORDERED:
1. The Second Report and Recommendation is accepted;
2. Defendants' Motion to Dismiss is granted;
3. Plaintiff's claims pursuant to the Eighth Amendment against the CDCR and defendant Frances in her official capacity are dismissed with prejudice and without leave to amend;
4. Plaintiff's claims pursuant to the Eighth Amendment against defendant Frances in her individual capacity and his claims pursuant to the ADA against the CDCR and defendant Frances in her official capacity are dismissed with leave to amend; and
5. The clerk shall serve this Order on all counsel or parties of record. DATED:
3/18/16
/s/_________
HONORABLE PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE