(PC) Carreon v. Abdur-Rahman et al, No. 2:2017cv01292 - Document 30 (E.D. Cal. 2018)
Court Description: ORDER signed by District Judge Troy L. Nunley on 9/27/18 ADOPTING the findings and recommendations filed 9/15/18 in full; GRANTING in part and DENYING in part Defendants' motion to dismiss (ECF No. 19 ): Defendants' motion to dismiss Pla intiff's retaliation claims against Defendant Dr. Abdur-Rahman, based on medical treatment provided before 7/26/15, is DISMISSED with prejudice; and Defendants' motion to dismiss Plaintiff's retaliation claims against Defendant Dr. Abd ur-Rahman based on medical treatment provided or not provided after 7/26/15 is DISMISSED with leave to amend; in the alternative, Plaintiff may choose to proceed on his original complaint based solely on his Eighth Amendment deliberate indifference c laims. Defendants' motion to dismiss Plaintiff's Eight Amendment deliberate indifference claims is DENIED without prejudice to renewal in a motion for summary judgment. Plaintiff may file an amended complaint within thirty (30) days of this Order. If Plaintiff does not file an amended complaint within that time, the action will proceed on the original complaint for only the Eight Amendment deliberate indifference claims. (Becknal, R)
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(PC) Carreon v. Abdur-Rahman et al Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO CARREON, 12 13 14 15 No. 2:17-cv-1292-TLN-KJN Plaintiff, v. ORDER Dr. S. ABDUR-RAHMAN, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 15, 2018, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. Defendants filed 23 objections to the findings and recommendations. Plaintiff filed no objections. 24 Defendants object to the magistrate judge’s decision not to consider documents not 25 appended to the complaint under the incorporation by reference doctrine, relying on In re Silicon 26 Graphics Inc. Securities Litigation, 183 F.3d 970, 986 (9th Cir. 1999), Knievel v. ESPN, 393 F.3d 27 1068, 1076 (9th Cir. 2005), and other cases. (ECF No. 27 at 2–3.) However, none of the cases 28 cited by Defendants were brought by prisoners proceeding pro se, and none of the courts’ 1 Dockets.Justia.com 1 decisions were rendered in the context of an Eighth Amendment challenge alleging deliberate 2 indifference to the prisoner’s medical care.1 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 Court finds the findings and recommendations to be supported by the record and by proper 6 analysis. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The findings and recommendations filed August 15, 2018 are ADOPTED in full. 9 2. Defendants’ motion to dismiss (ECF No. 19) is GRANTED in part and DENIED in 10 part: 11 a. Defendants’ motion to dismiss Plaintiff’s retaliation claims against Defendant 12 Dr. Abdur-Rahman, based on medical treatment provided before July 26, 2015, is DISMISSED 13 with prejudice; and 14 b. Defendants’ motion to dismiss Plaintiff’s retaliation claims against Defendant 15 Dr. Abdur-Rahman based on medical treatment provided or not provided after July 26, 2015 is 16 DISMISSED with leave to amend; in the alternative, Plaintiff may choose to proceed on his 17 original complaint based solely on his Eighth Amendment deliberate indifference claims. 18 19 3. Defendants’ motion to dismiss Plaintiff’s Eight Amendment deliberate indifference claims is DENIED without prejudice to renewal in a motion for summary judgment. 20 3. Plaintiff may file an amended complaint within thirty (30) days of this Order. If 21 Plaintiff does not file an amended complaint within that time, the action will proceed on the 22 original complaint for only the Eight Amendment deliberate indifference claims. 23 24 Dated: September 27, 2018 25 26 27 28 Troy L. Nunley United States District Judge In addition, although Defendants filed a motion dismiss and not a motion for summary judgment, it is likely Plaintiff would be entitled to contemporaneous and fair notice of how he would have to rebut information set forth in those documents. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc). 1 2
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