Opinion
C22-5947JLR-TLF
06-14-2023
HECTOR CODY ORTIZ III, Plaintiff, v. PIERCE COUNTY, et al., Defendants.
ORDER
JAMES L. ROBART United States District Judge
I. INTRODUCTION
Before the court are: (1) Defendants Doctor Miguel Balderrama, Chief Patti Jackson-Kidder, Lieutenant Gayle Pero, and Pierce County's (collectively, “Pierce County Defendants”) motion to dismiss (Pierce MTD (Dkt. # 14); Pierce Reply (Dkt. # 19)); (2) Defendants Doctor Maria Ordonez and Jonathan Slothower's (collectively, “NaphCare Defendants”) motion to dismiss (NaphCare MTD (Dkt. # 16)); (3) Plaintiff Hector Cody Ortiz III's response (Resp. (Dkt. # 18)); and (4) United States Magistrate Judge Theresa L. Fricke's report and recommendation in which she recommends that the court deny both motions to dismiss (R&R (Dkt. # 20)). No party filed objections to Magistrate Judge Fricke's report and recommendation. (See Dkt.) Having carefully reviewed the foregoing documents, along with all other relevant documents and the governing law, the court ADOPTS the report and recommendation (Dkt. # 20).
II. ANALYSIS
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (noting that when no objections are filed, the court need not review de novo the report and recommendation). Because Mr. Ortiz is proceeding pro se, this court must interpret his submissions liberally. See Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925 (9th Cir. 2003).
In her report and recommendation, Magistrate Judge Fricke denies both motions to dismiss, finding Mr. Ortiz plausibly alleged all Defendants violated his Fourteenth Amendment right to medical care in pre-trial detention. (See R&R at 6-21.) Magistrate Judge Fricke concluded that Mr. Ortiz's claims against Defendants Dr. Balderrama, Chief Jackson-Kidder, and Lieutenant Pero in their official capacities, however, should be dismissed as redundant of his claims against Pierce County. (Id. at 16.)
The court has thoroughly examined the record before it and finds Magistrate Judge Fricke's reasoning persuasive in light of that record. The court independently concludes that Pierce County Defendants' motion to dismiss (Dkt. # 14) should be denied, except with respect to Mr. Ortiz's official capacity claims against Defendants Dr. Balderrama, Chief Jackson-Kidder, and Lieutenant Pero in their official capacities, which should be dismissed as redundant of his claims against Pierce County. The court also independently concludes that NaphCare Defendants' motion to dismiss (Dkt. # 16) should be denied. Accordingly, the court ADOPTS the report and recommendation in its entirety.
The court now turns to the language in the proposed order adopting the report and recommendation instructing Magistrate Judge Fricke to inquire about the availability of pro bono counsel to represent Mr. Ortiz and authorize her to appoint available counsel. (Prop. Order (Dkt. # 20-1) ¶ 4.) Mr. Ortiz has not filed a request for appointment of pro bono counsel. (See generally Dkt.) There is no authority before the court authorizing appointment of pro bono counsel sua sponte. Accordingly, the court declines to adopt this instruction.
Nothing in this order precludes the court or Magistrate Judge Fricke from considering a motion for appointment of pro bono counsel by Mr. Ortiz, should he properly file such a request.
III. CONCLUSION
For the foregoing reasons, the court ORDERS as follows:
(1) The court ADOPTS the report and recommendation (Dkt. # 20);
(2) Pierce County Defendants' motion to dismiss (Dkt. # 14) is DENIED except with respect to Mr. Ortiz's claims against Dr. Balderrama, Chief Jackson-Kidder, and Lt. Pero in their official capacities, which are DISMISSED;
(3) NaphCare Defendants' motion to dismiss (Dkt. # 16) is DENIED;
(4) The case is referred to Magistrate Judge Fricke for further proceedings and to issue a scheduling order; and
(5) The court DIRECTS the Clerk to send copies of this order to Mr. Ortiz, to counsel for all defendants, and to Magistrate Judge Fricke.