Opinion
CASE NO. 3:18-cv-05736-RJB-JRC
03-19-2020
SCOTT W. HUMPHREYS, Plaintiff, v. LUKE BURGHER, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
The Court, having reviewed the Report and Recommendation ("R&R") of Magistrate Judge J. Richard Creatura (Dkt. 77), Defendants' Objections to the R&R (Dkt. 78), and the remaining record, does hereby find and ORDER that the R&R is ADOPTED. Defendants' Third Motion to Dismiss (Dkt. 70) is GRANTED, IN PART, and DENIED, IN PART: all parties and all claims, except for Plaintiff's Eighth Amendment claim against Defendant Burgher, are dismissed with prejudice and without leave to amend.
With respect to Plaintiff's Eight Amendment claim against Defendant Burgher, Defendants argue, in part, that Plaintiff failed to state a claim because Defendant Burgher's alleged conduct, if true, was only an isolated instance of neglect and did not rise to the level of deliberate indifference—a required element of Plaintiff's claim. See Dkt. 78 (citing, e.g., Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) ("If the harm is an 'isolated exception' to the defendant's 'overall treatment of the prisoner [it] ordinarily militates against a finding of deliberate indifference.")). Applying the liberal standards applicable at this early stage of the proceedings, as set forth in the R&R, Plaintiff's allegations concerning the nature of Defendant Burgher's response and the seriousness of Plaintiff's medical needs are adequate to survive dismissal at this time.
The Clerk is directed to send uncertified copies of this Order to Magistrate Judge J. Richard Creatura, all counsel of record, and any party appearing pro se at said party's last known address.
Dated this 19th day of March, 2020.
/s/_________
ROBERT J. BRYAN
United States District Judge