Homer E Hawkins v. Gary Sandor et al
Filing
80
ORDER ACCEPTING AND MODIFYING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Josephine Staton Tucker for Report and Recommendation 79 ; This action may proceed against Defendant Felker in his official capacity only on Plaintiffs Americans with Disabilities Act claim in Claim Three of the Seventh Amended Complaint concerning the lack of a handicapped-accessible shower. See order for details. (jy)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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HOMER E. HAWKINS,
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Plaintiff,
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v.
RONALD W. THOMAS, M.D., et al.,
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Defendants.
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NO. EDCV 09-1862 JST (SS)
ORDER ACCEPTING AND MODIFYING
FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE
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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Seventh
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Amended Complaint in the above-captioned matter, all the records and
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files herein, and the Report and Recommendation of the United States
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Magistrate Judge.
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Recommendation
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Accordingly, the Court accepts and adopts the findings, conclusions and
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recommendations of the Magistrate Judge, as modified below.
has
The time for filing Objections to the Report and
passed
and
no
Objections
have
been
received.
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In accepting the Report and Recommendation, the Court notes that
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Plaintiff has had seven opportunities to amend his complaint and state
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his
claims.
In
particular,
Plaintiff
has
been
specifically
and
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repeatedly advised by the Magistrate Judge that he cannot bring a claim
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of deliberate indifference to medical needs against individuals purely
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in their supervisory role.
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4-5; Dkt. No. 22 at 4-5; Dkt. No. 25 at 6-8).
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pleading deficiencies, Plaintiff merely reasserted the same claims with
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new and different defendants. Plaintiff included these allegations even
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though he was aware that he could not state deliberate indifference
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claims against top-level CDCR officials Winslow, Felker and Girubino,
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named for the first time in the Seventh Amended Complaint, because none
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of these individuals played any role whatsoever in his medical care nor
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is there any demonstration that they had any knowledge of his medical
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care.
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(supervisor must have knowledge of and acquiesce in unconstitutional
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conduct to be liable for deliberate indifference).
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than ample notice that such claims are defective.
See
Starr
v.
(See, e.g., Dkt. No. 4 at 9; Dkt. No. 16 at
Baca,
652
F.3d
Rather than address these
1202,
1207
(9th
Cir.
2011)
Plaintiff had more
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Furthermore, 28 U.S.C. §§ 1915(e)(2)(B)(ii) and (iii) and 1915A,
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require the Court to “screen” complaints in which a prisoner seeks
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redress from a governmental employee and to dismiss a complaint, or any
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portion of the complaint, if the complaint fails to state a claim or
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seeks monetary relief from a defendant who is immune.
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Smith, 203 F.3d 1122 (9th Cir. 2000), the Ninth Circuit reviewed these
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provisions and concluded that under the Prison Litigation Reform Act
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("PLRA"), a court may exercise its discretion in deciding whether to
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dismiss a complaint with or without leave to amend for failure to state
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a claim.
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PLRA does not preclude courts from granting leave to amend, which this
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Court has repeatedly done in allowing Plaintiff to amend his claims
Id. at 1124.
In Lopez v.
While the Lopez decision reaffirmed that the
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seven
times,
the
decision
also
confirms
that
courts
may
dismiss
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meritless claims without leave to amend.
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required to grant leave to amend if a complaint lacks merit entirely.”).
Id. at 1129 (“Courts are not
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It is appropriate to dismiss a claim without leave to amend when
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(1) the plaintiff has already had opportunities to amend his complaint
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and (2) further amendment would be futile.
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District #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997)
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(denial
of
request
for
leave
to
amend
See Plumeau v. School
appropriate
where
further
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amendment would be futile); Zucco Partners, LLC v. Digimarc Corp., 552
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F.3d 981, 1007 (9th Cir. 2009) (affirming dismissal without leave to
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amend
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plaintiff failed to correct those deficiencies in amended pleading).
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Here,
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Accordingly, dismissal of these claims without leave to amend is
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appropriate.
where
the
court
advised
dismissed
claims
plaintiff
could
not
of
be
pleading
cured
deficiencies
by
any
but
amendment.
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Accordingly, IT IS ORDERED THAT:
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1.
Plaintiff’s claims against Defendant Lind are DISMISSED WITH
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PREJUDICE for failure to state a claim pursuant to Federal Rule of Civil
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Procedure 12(b)(6).
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2.
Plaintiff’s claims against Defendant Thomas are DISMISSED WITH
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PREJUDICE for failure to name Thomas’s personal representative or
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successor-in-interest
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25(a)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii).
pursuant
to
Federal
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Rule
of
Civil
Procedure
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3.
Plaintiff’s claims against Defendants Winslow and Giurbino are
DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
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4.
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Plaintiff’s claims against Defendant Felker under 42 U.S.C.
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§
are
DISMISSED
WITH
PREJUDICE
pursuant
to
28
U.S.C.
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§ 1915(e)(2)(B)(ii).
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in his official capacity only on Plaintiff’s Americans with Disabilities
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Act claim in Claim Three of the Seventh Amended Complaint concerning the
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lack of a handicapped-accessible shower.
This action may proceed against Defendant Felker
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The Clerk shall serve copies of this Order by United States mail on
Plaintiff and on counsel for Defendants.
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DATED: May 29, 2012
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JOSEPHINE STATON TUCKER
UNITED STATES DISTRICT JUDGE
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