The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER(1) ADOPTING REPORT & RECOMMENDATION [DOC. NO. 48]; (2) GRANTING IN-PART AND DENYING IN-PART MOTION TO DISMISS [DOC. 25] AND (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL [DOC. NO. 41]
On May 14, 2007, plaintiff Tyun Sockee Dodson, a state prisoner proceeding pro se and in forma pauperis, filed this civil-rights lawsuit under 42 U.S.C. § 1983. Although Dodson is currently incarcerated at Corcoran State Prison, this lawsuit arises from events that occurred while he was an inmate at Calipatria State Prison.
On October 24, 2007, defendants Bell, Canada, Galvan, Nelson, Rocha, Santiago, Silva, Swearingen and Tamayo (collectively, "Defendants") filed a motion to dismiss the Complaint. (Doc. No. 25.) On January 7, 2008, defendant Barrios filed a joinder to the motion. On February 15, 2008, defendants Arani and Mora also filed a joinder.
After briefing on Defendants' motion to dismiss was complete, Dodson filed a motion for appointment of counsel (Doc. No. 41.)
On June 6, 2008, United States Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("Report" [Doc. No. 48]), recommending that the Court grant in-part and deny in-part Defendants' motion to dismiss, and deny Dodson's motion for appointment of counsel. On July 21, 2008, Dodson filed objections to the Report.*fn1 On July 28, 2008, Defendants filed a reply to Dodson's objections. Defendants did not file any objections to the Report.
The matters being fully briefed, the Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons outlined below, the Court (1) ADOPTS the Report (Doc. No. 48), (2) GRANTS IN-PART and DENIES IN-PART Defendants' motion to dismiss (Doc. No. 25), and (3) DENIES Dodson's motion for appointment of counsel (Doc. No. 41).
The following facts are taken nearly verbatim from the Report, which in evaluating the motion to dismiss, was required to accept as true the Complaint's allegations.
On July 30, 2005, while incarcerated at Calipatria State Prison, Dodson was allegedly beaten by several correctional officers. (Compl. at 1.) The altercation began when defendant Rocha entered Dodson's cell to collect his previous cellmate's property. (Id. at 6.) After removing the property, Rocha reentered the cell holding his baton. (Id.) Dodson alleges Rocha was angry that Dodson's mother lodged a complaint against him, and Rocha allegedly said: "You wanna cry to your mommy, I'll give you something to cry about." (Id.) Dodson replied by saying, "whatever." (Id.) Rocha then swung his baton at Dodson, who lunged forward and punched Rocha in the face. (Id.)
The alarm was triggered, and responding officers arrived. (Id.) Defendant Swearingen entered the cell and pepper sprayed Dodson, causing him to fall to the ground.
(Id.) After defendant Mora placed Dodson in handcuffs, defendants Swearingen, Canada, and Tamayo allegedly beat Dodson with their batons while he was lying on his stomach. (Id.) Dodson crawled under his bunk after a blow to the head by Tamayo. (Id. at 7.) Tamayo then sat on Dodson's legs and twisted his left foot. (Id.) Canada struck Dodson's shin with his baton. (Id.) Rocha grabbed Dodson's left pinky and ring fingers and beat his left hand with a baton. (Id.) Defendant Silva placed his knee at the base of Dodson's neck, covered his nose and mouth with plastic, and tried to break his neck or suffocate him. (Id.)
The commotion caused other inmates in the building to yell for the correctional officers to stop the abuse, although the view into Dodson's cell was blocked by the officers. (Id.) Dodson was escorted from his cell by defendants Canada and Tamayo. (Id. at 8.) When one of the other inmates asked, "You alright Sockee?", defendant Canada told Dodson, "Tell him you're alright!", but Dodson said nothing. (Id.)
Dodson was escorted outside in the dark where numerous other officers were present. (Id.) Dodson had heard rumors that an inmate was beaten in front of the building, and fearing the worst, he began searching for officers' name tags. (Id.) Dodson saw defendant Arani with a "6 shooter block gun." (Id.) Dodson asked him, "Arani, you gone' [sic] let them do this to me man?" (Id.) Arani replied, "It's too late now man!" (Id.) Dodson also saw defendant Galvan, who would not make eye contact with Dodson and quickly walked away. (Id.)
Defendants Canada and Tamayo escorted Dodson to the Medical Technician Assistant's ("MTA") office. (Id. at 8--9.) Dodson noticed defendant Silva speaking with defendant Ruan. (Id. at 9.) Once Dodson was inside the MTA office's holding cage, Silva entered the cage and told defendants Bell and Barrios to "clear out," which they did. (Id.) Silva then asked, "You wanna hit my officers huh? You piece of shit! . . . Huh? You little bitch!" (Id.) Dodson responded, "He hit me first." (Id.) Silva then struck Dodson in the face, causing him to lose consciousness. (Id.) When he regained consciousness, defendants Canada and Tamayo were kicking Dodson as he lay on the floor. (Id.) Defendants Canada and Tamayo then pulled Dodson up and held him while defendant Silva punched him in the stomach. (Id.) Silva said, "You're not so though now are you? You little bitch!" (Id.) Silvan then spit on Dodson. (Id.)
Dodson was stripped and searched for contraband, and then handcuffed by defendant Tamayo. (Id. at 10.) Defendants Bell and Barrios returned and started attending to Dodson's more serious wounds. (Id.) Bell and Barrios documented some, but not all, of Dodson's injuries. (Id.) Silva then entered the room and said to Dodson, "It was all your fault and I better not hear anyting different!" (Id.) Silva motioned to defendant Ruan, who stopped short of the entrance and said, "Let me hear it." (Id.) Dodson responded, "It was all my fault." (Id. at 10--11.)
Dodson was taken to the Outpatient Housing Unit ("OHU"). (Id. at 14.) Defendant Santiago, a doctor, and an unnamed nurse treated him. (Id.) Santiago examined Dodson's wounds and determined that the wound to his hand needed to be sutured. (Id.) When Santiago asked Dodson how he got the wound, Officer Rowe yelled, "This is the bastard that knocked out the officer's teeth you just saw in the other room!" (Id.) Dodson had cut his hand on defendant Rocha's teeth. (Id.) Santiago sutured the wound, ignoring the advice of the unnamed nurse not to suture it because it was a teeth wound. (Id.) The nurse gave Dodson a tetanus shot and said that he would need antibiotics. (Id.)
Dodson was then escorted to a shower for pepper-spray decontamination. (Id. at 15.) While in the shower, defendant Nelson arrived to place Dodson in Administrative Segregation ("Ad-Seg"). (Id.) At the same time, the nurse arrived to give Dodson his antibiotics and began instructing him on how to take them. (Id.) Nelson yelled, "Get the fuck out of here! He doesn't want your fucking meds!" (Id.) Nelson then threw the pills to the ground at the nurse's feet. (Id.) When Dodson asked, "What's up with my antibiotics?", Nelson kicked the pills, causing them to go "all over the place." (Id.)
Dodson was escorted to Ad-Seg, where he was held without a mattress, blanket, eating utensils, or toiletries for two days. (Id. at 15--16.) Three days later, Dodson was examined by defendant Bell for complaints of a throbbing hand. (Id. at 16.) That evening, Dodson had cold chills and was sweating all night. (Id.) Dodson was examined the next day by Dr. Levine, who diagnosed him with an infection and told Dodson that the wound should not have been sutured. (Id.) Dr. Levine milked the wound and admitted Dodson to OHU, where he received intravenous medication for about four days. (Id.)
A. Review of Magistrate Judge's Report
A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980).
When no objection is made, however, the district court is not required to review the report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 28 U.S.C. 636(b)(1)(c) "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")(emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding that where no objections were filed, the District Court had no obligation to review the magistrate judge's report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, de novo review of a R & R is only required when an objection is made to the R & R.")(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review ...