The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER: 1) ADOPTING REPORT AND RECOMMENDATION (Doc. No. 48.) 2) GRANTING DEFENDANT TORCHIA'S MOTION TO DISMISS (Doc. No. 12.) 3) GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT SANTOYO AND ROBERTSON'S MOTION TO DISMISS (Doc. No. 16.) 4) DENYING PLAINTIFF'S MOTION FOR DEFAULT CALLING FOR SANCTIONS (Doc. No. 28.) 5) DENYING DEFENDANTS' EX PARTE MOTION FOR AN EXTENSION OF TIME (Doc. No. 13.)
Plaintiff Adam Ray Lopez ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on January 16, 2009, pursuant to 42 U.S.C. § 1983 (Doc. No. 1.) Plaintiff filed his First Amended Complaint ("FAC") on July 15, 2009. (Doc. No. 7.)*fn1 Plaintiff asserts that Defendants P. Santoyo, D.D.S., C. Robertson, Chief Dental Officer, and Richard Torchia, D.D.S., violated his Eighth Amendment rights by acting with deliberate indifference to his dental needs.*fn2 On June 17, 2010, Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("Report"), recommending that the Court GRANT-IN-PART and DENY-IN-PART Defendants Torchia, Santoyo, and Robertson's motion to dismiss, and DENY Plaintiff's Motion for Default Calling for Sanctions.. (Doc. No. 48.) The Report also ordered that any objections were to be filed by July 16, 2010, and any reply filed by July 30, 2010. (Id.)
On July 16, 2010, Defendants Santoyo and Robertson filed an objection to the Report. (Doc. No. 49.) The Court is now prepared to consider Defendants' Objection on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1). For the following reasons, the Court OVERRULES Defendants' objection and ADOPTS the Report.
At the time Plaintiff filed the FAC, he was incarcerated at the California Substance Abuse Treatment Facility and State Prison in Corcoran, California. (FAC at 4.) The events giving rise to this suit occurred while he was housed at Calipatria State Prison. (Id.)
On July 26, 2006, Plaintiff submitted a Health Care Service Request form to prison officials requesting the extraction of his wisdom teeth because he was experiencing extreme pain and discomfort. (FAC. at 4, Exh. A.) Defendant Santoyo, a dentist at Calipatria, saw Plaintiff on November 1, 2006. (FAC at 4.) Defendant Santoyo examined Plaintiff and completed a Physician Request for Services form, indicating that Lopez was in "urgent" need of oral surgery for two impacted molars, citing swelling, pain, and infection. (FAC. at 4, Exh. C.) The proposed service provider was Defendant Torchia. (FAC at 4; Exh. C.)
Plaintiff alleges that Defendant Santoyo refused to provide him the necessary pain medication. Plaintiff claims that his tooth became infected and swollen, which caused him to have severe migraine headaches and earaches. (FAC at 4.) As a result, Plaintiff was prevented from eating, sleeping, and talking. (Id. at 4.) Plaintiff also faults Defendant Santoyo for failing to follow up on his recommendation for oral surgery, because he was aware that Plaintiff's need was "urgent." (Id. at 4.) Plaintiff asserts that Defendant Santoyo had no justification for referring Plaintiff to an oral surgeon because Defendant Santoyo performs tooth extractions. (Id. at 4.)
Defendant Robertson was the Chief Dental Officer at Calipatria who approved the referral to an oral surgeon on November 2, 2006. (FAC at 5-6, Exh. C.) Plaintiff contends that Defendant Robertson was "grossly negligent in managing the people he was supposed to supervise" because "had [D]efendant [R]obertson been meticulous in his supervision duties, he would have ensured that [P]laintiff received the proper pain medication to relieve [P]laintiff['s] pain and suffering." (Id. at 5.)
On January 1, 2007, Plaintiff filed a 602 grievance, which was received by the prison administration on January 4, 2007. (FAC at 4; Doc. No. 25.) In the grievance, Plaintiff complained that he had "been patiently waiting since July 2006" to have his wisdom teeth extracted and requested to be sent to an outside hospital to have them removed. (Doc. No. 25. at Exh. B.) On February 20, 2007, Plaintiff received a reply informing him that he was on the oral surgery list to be seen by an outside provider. (Id.) Dissatisfied with the response, Plaintiff filed a first formal level appeal on February 22, 2007, seeking priority status to receive his surgery. (Id.) On April 23, 2007, Plaintiff received a first level review decision which granted his request and set his surgery date for April 30, 2007. (Id.)
On April 30, 2007, after ten months of suffering, including the time he initially waited to be seen by Defendant Santoyo, Plaintiff finally received oral surgery. (FAC at 6-7.) During the surgery, however, Defendant Torchia chipped one of his other teeth. (Id. at 7.) "Instead of filling-in the chipped tooth, defednet [sic] [T]orchia created a physicians order for a [C]alipatria dental sick call indicating a fill-in[g] was needed for [P]laintiff now." (Id. at 7.) As a result, Plaintiff asserts that his chipped tooth became infected, causing him pain and swelling, as well as migraines and earaches, that prevented him from eating, sleeping, or talking. (Id. at 7.)
Defendant Santoyo saw Plaintiff on May 15, 2007, for his "chipped tooth, swelling of the lower jaw and his inability to eat solid foods." (Id. at 7.) The doctor noted these and placed Plaintiff on a liquid diet. (Id. at 7.) Defendant Santoyo filled Plaintiff's tooth on July 10, 2007. (Id. at 7.) Plaintiff claims the interim delay caused him pain and suffering. He holds Defendant Torchia responsible for the pain he experienced from April 30, 2007, when the surgeon chipped his tooth, until July 10, 2007, when Defendant Santoyo filled the chip. (Id. at 8.)
On January 16, 2009, Plaintiff commenced this action alleging Defendants violated his Eighth Amendment rights by acting with deliberate indifference to his dental needs. (Doc. No. 1.) Plaintiff filed a First Amended Complaint ("Complaint") on July 15, 2009. (Doc. No. 7.) On September 23, 2009, Defendant Torchia filed a Motion to Dismiss. (Doc. No. 12.) Defendants Santoyo and Robertson moved to dismiss Plaintiff's FAC on December 2, 2009. (Doc. No. 16.)
On February 11, 2010, Plaintiff filed a Motion for Default Calling for Sanctions and alleged he did not receive a copy of Defendant Torchia's Motion to Dismiss. (Doc. No. 28.) Defendant Torchia filed an Opposition to Plaintiff's Motion on the same day. (Doc. No. 29.)
On June 17, 2010, Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("Report") recommending that Defendants' motion to dismiss be granted-in-part and denied-in-part and that Plaintiff's Motion for Default Calling for Sanctions be denied. (Doc. No. 48.)
Defendants Santoyo and Robertson filed an objection to the Report on July 16, 2010. (Doc. No. 49.) Defendants Santoyo and Robertson objected solely to the denial of the motion to dismiss on the grounds that Plaintiff's FAC and Opposition failed to demonstrate that Plaintiff exhausted his administrative remedies. (Id.)
On July 19, 2010, Plaintiff filed a Motion for Extension of Time to File a Response/Reply. (Doc. No. 50.) The Court granted Plaintiff's request and gave him until August 16, 2010 to file either an objection to the Report or a response to any other parties' objection. (Doc. No. 51.) In the same Order, the Court cautioned Plaintiff that it would not entertain any additional requests for extensions of time. (Id.) Ignoring that warning, Plaintiff filed a Motion for Extension of Time to File Objections on August 18, 2010. (Doc. No. 53.) The Court denied Plaintiff's Motion.
A. Review of Magistrate ...