Summary
noting that telling prison staff of a medical need was sufficient to allege the subjective component of an Eighth Amendment claim
Summary of this case from McClure v. ChenOpinion
Case No. EDCV 12-1220 JAK (SS)
10-31-2013
KEITH M. PETTY, Plaintiff, v. PA-C SHOJAEI, et al., Defendants.
ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed Plaintiff's First Amended Complaint, Defendants' Motion to Dismiss, Plaintiff's Opposition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. The time for filing Objections has passed, and no Objections have been received. Accordingly, the Court accepts and adopts the Magistrate Judge's Report and Recommendation.
Consistent with the Report and Recommendation, IT IS ORDERED that Defendants' Motion to Dismiss the First Amended Complaint is GRANTED IN PART and DENIED IN PART. Specifically,
(1) Defendants' Motion to Dismiss on the ground of Plaintiff's alleged failure to exhaust administrative remedies is DENIED without prejudice;
(2) Defendants' Motion to Dismiss on the ground of failure to state a claim for deliberate indifference is DENIED;
(3) Defendant Blier's Motion to Dismiss on the ground of qualified immunity is DENIED without prejudice;
(4) Defendants' Motion to Dismiss on the ground of Plaintiff's failure to serve Defendants Shojaei, Almond and Chaney in compliance with Federal Rule of Civil Procedure 4(m) is DENIED without prejudice;
(5) Defendants' Motion to Dismiss on the ground of failure to state a claim against Defendants in their official capacity is GRANTED;
(6) Defendant Aird's Motion to Dismiss on the ground of absolute immunity under 42 U.S.C. § 233(a) is GRANTED.
Defendant Blier is ORDERED to file an Answer to the First Amended Complaint, as amended by the dismissal with prejudice of all claims against all Defendants in their official capacity and all claims against Defendant Aird in both his individual and official capacities, within fourteen (14) days of the date of this Order.
The Clerk of the Court shall serve copies of this Order on Plaintiff and counsel for Defendants.
IT IS SO ORDERED.
__________________________
JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE