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Bovarie v. Schwarzenegger

March 18, 2010

MARCUS BOVARIE, ET AL., PLAINTIFFS,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION

Bovarie is a California prisoner currently incarcerated at Centinela State Prison. Defendants are the Governor of California, the secretary and former secretary of the California Department of Corrections and Rehabilitation, the warden and former wardens of Centinela, and a number of doctors and medical staff at Centinela. There are eighteen defendants in all. The essence of Bovarie's claim, which he brings as a civil rights lawsuit under 42 U.S.C. § 1983, is that he received inadequate medical care at Centinela. The Court adopts the Report and Recommendation almost in its entirety.

I. Procedural History

Bovarie filed this lawsuit on September 10, 2008, and pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and (d) it was referred to Magistrate Judge Nita Stormes for a Report and Recommendation ("R&R"). Because Bovarie is proceeding pro se, the Court screened his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and dismissed it for failure to state a claim. (Doc. No. 3.) See Lopez v. Smith, 203 F.3d 1122, 1126--27 (9th Cir. 2000) (en banc). Bovarie then filed his First Amended Complaint ("FAC") (Doc. No. 6), which the Court again screened and dismissed, but only as against certain defendants. (Doc. No. 8.) The remaining defendants then moved to dismiss, some individually, some collectively, and it is their motions to dismiss that the R&R addresses and that are now before the Court.

Three notable modifications were made to Bovarie's complaint as a result of the Court's screenings pursuant to 28 U.S.C. § 1915(e)(2)(B). First, defendants Schwarzenegger, Cates, Tilton, Smelosky, Almager, and Giurbino have been dismissed without prejudice. Bovarie does not allege that any of these defendants were directly involved in or responsible for the inadequate medical care he allegedly received, and there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437--38 (9th Cir. 1993). Second, Wayne Wicken was dismissed as a co-plaintiff because he failed to file a Motion to Proceed In Forma Pauperis, and because Bovarie has no legal authority to represent him. Third, Bovarie's motion for class certification was denied without prejudice. There is an almost identical class action, Plata v. Schwarzenegger, already pending in the Northern District of California. See N.D. Cal. Civil Case No. C-01-1351.

Judge Stormes issued her R&R on January 21, 2010. Both Bovarie and the Defendants filed objections to it.

II. The R&R

Bovarie is clear in the FAC that he is suing Defendants in their individual and official capacities. The first conclusion of the R&R is that the Eleventh Amendment immunizes Defendants from liability in their official capacities. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n.10 (1989).

Next, the R&R concludes that Tetteh, Ko, and Hodge should be dismissed as defendants, with prejudice, because Bovarie doesn't allege he had any contact with them. These are doctors who treated Wicken, and the Court has already dismissed Wicken as a plaintiff in this case.

Then the R&R turns to Cook, Hammond, and Robinson, who it concludes can't be accused of deliberate indifference to Bovarie's medical needs because they merely reviewed and processed Bovarie's medical appeals by relying, in good faith, on the opinions of the doctors who actually saw Bovarie. The R&R recommends dismissing Cook, Hammond, and Robinson with prejudice.

The R&R also concludes that Bovarie has pled sufficient facts to ground an Eighth Amendment claim against Aymar, although this claim cannot be based upon Aymar's allegedly inadequate medical licensing.

Finally, the R&R recommends allowing Bovarie's claims for injunctive relief to go forward on the ground that Defendants haven't adequately shown why those claims are subsumed by the Plata class action.

III. Legal Standards

The Court reviews the R&R pursuant to Rule 72 of the Federal Rules of Civil Procedure. "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). 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). The R&R itself warns that "failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order." (R&R at 17.)

Because Bovarie is a prisoner and is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). That said, "[p]ro se litigants must follow the ...


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