The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING SECOND REPORT AND RECOMMENDATION
On February 9, 2005, Plaintiff, a prisoner proceeding in forma pauperis and, at that time, pro se, filed a complaint, alleging prison personnel were deliberately indifferent to his serious medical needs. Specifically, Plaintiff alleged that a dentist, Dr. Angelici, while performing a dental procedure, severely injured his mouth. Plaintiff alleges that after this, he was denied adequate treatment over an extended period and that Defendants were thus deliberately indifferent to his serious medical needs.
On April 11, 2005, Plaintiff filed his First Amended Complaint ("FAC"), which Defendants Ryan and Garsh moved to dismiss. These were referred to Magistrate Judges for reports and recommendations pursuant to 28 U.S.C. § 636. Magistrate Judge Leo Papas issued a report and recommendation on Defendant Ryan's motion, and Magistrate Judge Cathy Bencivengo issued a report and recommendation on Defendant Garsh's motion (the "First R&R"). Plaintiff filed objections to both reports and recommendations. On September 6, 2006, the Court adopted both reports and recommendations, dismissed claims against Defendants Ryan and Garsh without prejudice, and granted Plaintiff leave to amend his complaint a second time.
Shortly before the Court issued its order adopting the reports and recommendations, Plaintiff, who had been proceeding pro se, obtained counsel. On October 2, 2006, Plaintiff filed his Second Amended Complaint ("SAC"), which it is apparent was drafted by counsel.
On October 25, 2006, Defendants Garsh and Ryan moved to dismiss the SAC pursuant to Fed. R. Civ. P. 12(b)(6). As before, the motion was referred to Magistrate Judge Bencivengo for report and recommendation, which she issued on April 14, 2007 (the "Second R&R"). The Second R&R recommended that the motion to dismiss be granted as to Defendant Ryan, but denied as to Defendant Garsh. Defendant Garsh alone objected to the Second R&R.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id.; see also 28 U.S.C. § 636(b)(1)(C). "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)(C).
Thus, this Court must review those parts of the report and recommendation to which a party has filed a written objection. Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149--50 (1985). The Ninth Circuit has interpreted the language of 28 U.S.C. § 636(b)(1), and determined that 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).
When determining whether a complaint states a claim, the Court accepts all allegations of material fact in the complaint as true and construes them in the light most favorable to the non-moving party. Cedars-Sinai Medical Center v. National League of Postmasters of U.S., ___ F.3d ____, 2007 WL 2284349, slip op. at *2 (9th Cir. 2007) (citation omitted). However, the Court is "not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint," and does "not . . . necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citations and quotation marks omitted).
Although the Second R&R cited the now-rejected standard set forth in Conley v. Gibson, 355 U.S. 41, 45--46 (1957), see Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1968 (2007) (abrogating Conley's "no set of facts" standard), the Court in ruling on Defendant Garsh's objections has relied on the current standard and observes that the outcome is unchanged.
Essentially, Defendant Garsh's objection is that Plaintiff has changed his story and his SAC therefore relies on sham allegations. Defendant Garsh objects that the Second R&R improperly refused to consider facts pleaded in the FAC which contradicted and undercut Plaintiff's pleadings in the SAC. In support of the principle that the Court should consider earlier pleadings for this purpose, Plaintiff cites various portions of Bradley v. Chiron Corp., 136 F.3d 1317 (Fed. Cir. 1998); Reddy v. Litton Industries, Inc., 912 F.2d 291 (9th Cir. 1990); McCabe v. General Foods Corp., 811 F.2d 1336 (9th Cir. 1987); and Ellingston v. Burlington Northern, Inc., 653 F.2d 1327 (9th Cir. 1981).
First, the Court notes, Plaintiff appears to have misconstrued the Second R&R slightly. While the R&R refused to consider the FAC, or exhibits attached to it, in evaluating whether the SAC stated a claim, the R&R also noted that all the allegations Defendant Garsh wanted considered were also contained in the SAC. (Second R&R at 5 n.2 ("Defendants point to the following allegations. . . . These allegations, however, are included in the SAC. . .").) Thus, the Second R&R was not refusing altogether to consider facts previously ...