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Floyd Moody, Cdcr #G-26035 v. Finander

September 23, 2011

FLOYD MOODY, CDCR #G-26035, PLAINTIFF,
v.
FINANDER, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alanburns United States District Judge

ORDER ADOPTING REPORTS AND RECOMMENDATIONS; AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT PAULETTE [Docket numbers 88, 103, 105, 138, 140, 141, and 142.]

Plaintiff, a prisoner in state custody, brought this action under 42 U.S.C. § 1983 against prison medical personnel for violation of his Eighth Amendment rights. Specifically, he argued they were deliberately indifferent to his serious medical needs. This matter was referred first to Magistrate Judge Jan Adler, and later to Magistrate Judge Bernard Skomal for report and recommendation ("R&R").

Defendant Dr. Richard Butcher filed a motion for summary judgment (Docket no. 88), as did Defendants Drs. Finander and Ball (Docket no. 105). Defendant Dr. Reddy moved to dismiss under Fed. R. Civ. P. 12(b)(5) (for improper service) and (6) (for failure to state a claim) (Docket no. 103). Judge Adler issued his three reports and recommendations (the "R&Rs") (Docket nos. 140 through 142), recommending granting both motions for summary judgment, granting Dr. Reddy's motion to quash service, and denying as moot Dr. Reddy's motion to dismiss for failure to state a claim. The R&Rs set deadlines for objections. Plaintiff Moody has objected to the two R&Rs that recommend granting the motions for summary judgment, but has not objected to the R&R that recommends quashing service on Dr. Reddy.

On June 23, 2011, Moody also filed a motion (Docket no. 138) objecting to various tactics and actions by Defendants, especially Defendants' counsel's failure to send him a proposed pretrial order for review. More generally, the motion objects that Defendants are engaging in stalling tactics in this litigation.

While the motions were pending, Judge Skomal issued a warning pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). (Docket no. 139.) This warning cautioned Moody about the effect of a summary judgment motion, and invited him to submit additional briefing or evidence. Moody failed to do so within the time permitted and, in his objections to the R&Rs, acknowledged he was not submitting supplemental documents. (Docket no. 143, ¶ 4.)

I. Moody's Motion

To the extent Moody's motion deals with matters concerning the pretrial conference, it is premature. No pretrial conference is imminent, and no proposed pretrial order is due yet. This request is therefore unripe. To the extent Moody is objecting to Defendants' tactics as inappropriate, this is mainly an argument about the merits of his claims. Because the merits are being ruled on, this request is moot.

II. Legal Standards

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "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). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "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." Id. When no objections are filed, the Court need not review de novo the Report and Recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). Objections that would not alter the outcome are moot, and can be overruled on that basis. See, e.g., Ammons v. Walker, 2011 WL 844965, slip op. at *2 (C.D.Cal., March 3, 2011) (overruling as moot objections that, even if sustained, would not alter the outcome)).

"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). In ruling on a motion to dismiss for failure to state a claim, however, the Court accepts factual allegations as true and construes the pleadings in the light most favorable to the nonmoving party. Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007).

Prison conditions involving "the wanton and unnecessary infliction of pain" constitute cruel and unusual punishment in violation of the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation, however, unless (1) the prison official deprived the prisoner of the "minimal civilized measure of life's necessities," and (2) the official "acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.2004) (citations omitted). "[T]he indifference to his medical needs must be substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105--06 (1976)). "[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995).

A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment," or in the manner "in which prison physicians provide medical care." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). To succeed on a § 1983 "deliberate indifference" claim, a plaintiff must show, among other things, that a defendant's deliberate indifference caused harm. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing McGuckin at 1060).

III. Discussion

A. Dr. Reddy's Motion to Dismiss

On January 4, 2011, the Court denied Moody's motion for default judgment against Dr. Reddy, finding Dr. Reddy had not been properly served. Two days later, Dr. Reddy moved to dismiss for lack of personal jurisdiction, and also for failure to state a claim. On August 26, Judge Skomal issued his R&R (Docket no. 142), recommending that service on Dr. Reddy be quashed, that Moody be given additional time in which to serve Dr. Reddy, and that Dr. Reddy's motion to dismiss ...


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