The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AMILING,[Doc. No. 70.]
On February 1, 2008, Plaintiff Jacie Lee Goudlock, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 28 U.S.C. § 1983. (Dkt. No. 1.) A second amended complaint ("SAC") was filed on April 11, 2011. (Dkt. No. 63.) On July 22, 2011, Defendants filed a motion to dismiss the second amended complaint. (Dkt. No. 70.) An opposition was filed on July 28, 2011. (Dkt. No. 71.) On December 20, 2011, Magistrate Judge Brooks filed a report and recommendation granting in part and denying in part Defendants' motion to dismiss the second amended complaint. (Dkt. No. 74.) Objections were filed on January 30, 2012. (Dkt. No. 77.) For the reasons set forth below and with modifications stated herein, the Court ADOPTS the report and recommendation AS MODIFIED and GRANTS in part and DENIES in part Defendants' motion to dismiss.
On August 8, 2008, Plaintiff filed a first amended complaint against Correctional Officer Thompson, Correctional Sergeant Cruz and Registered Nurse Peterson. (Dkt. No. 7.) On September 15, 2009, the Court issued an order adopting the report and recommendation granting Defendant Peterson's motion to dismiss without leave to amend. (Dkt. No. 34.) On October 13, 2010, the Court issued an order dismissing Defendant Cruz for failure to serve. (Dkt. No. 48.) On November 19, 2010, the remaining Defendant, Thompson, filed a motion to dismiss the first amended complaint. (Dkt. No. 52.) On December 2, 2010, Plaintiff filed a motion for leave to file a second amended complaint. (Dkt. No. 53.) On January 28, 2011, Magistrate Judge Brooks issued a Report and Recommendation recommending that Defendant Thompson's motion to dismiss the first amended complaint be denied as moot and Plaintiff's motion for leave to file a second amended complaint be granted. (Dkt. No. 59.) On March 14, 2011, the case was transferred to the undersigned judge. (Dkt. No. 62.) On March 29, 2011, the Court issued an order adopting report and recommendation denying Defendant Thompson's motion to dismiss and granting Plaintiff's motion for leave to file a second amended complaint. (Dkt. No. 62.)
On April 11, 2011, a second amended complaint was filed against Defendants Correctional Sergeant Perez, Correctional Officer Esquilin and Correctional Officer Amiling. (Dkt. No. 63.) On July 22, 2011, Defendants filed a motion to dismiss the second amended complaint. (Dkt. No. 70.) On July 28, 2011, Plaintiff filed an opposition. (Dkt. No. 71.) On December 20, 2011, the Magistrate Judge filed a report and recommendation granting in part and denying in part Defendants' motion to dismiss. (Dkt. No. 74.) On January 30, 2012, Defendant Perez filed an objection to the report and recommendation. (Dkt. No. 77.)
According to the second amended complaint, on June 15, 2007, at around 4:00, Plaintiff fell asleep due to a medical condition while on the top bunk of a bunk bed. (SAC at 3*fn1 .) As a result of his fall, he cut his left foot "to the point that the injury needed stitches, and was bleeding-profusely, as well as twisting my ankle,-shaving off skin on my right thigh, and causing further damage to an already damaged ciatic nerve." (Id. at 3.) He and his cell mate screamed for assistance from Correctional Officers Esquilin and Amiling who were on duty at the time and they both refused to respond. (Id.) After about 30 minutes and as the pain became unbearable, his cell mate yelled for medical help screaming "man down." (Id.) The pleas for help were heard and ignored by both officers. (Id.)
A few days before the fall, on June 12, 2007, Plaintiff claims he spoke with Correctional Sergeant Perez about the "dangerous condition" where he was housed. (Id. at 11.) Plaintiff explained how two officers forced him into a top bunk on a top tier on June 11, 2007. (Id.) Plaintiff showed Perez his comprehensive medical chrono. (Id.) Perez asked Plaintiff if his condition was documented in his medical file and Plaintiff replied yes. (Id.) Plaintiff further explained that he had "severe sleep apnea" and that he had fallen from his bunk bed at his previous facility. (Id.) He claims that he talked with Defendant Perez two more time that week; however, Perez failed to act and allowed Plaintiff to remain in a dangerous situation. (Id.)
A. Scope of Review of Magistrate Judge's Report and Recommendation
The district court "shall 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); see also Fed. R. Civ. P. 72(b). A district court may adopt those parts of a Magistrate Judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 152-53 (1985).
B. Eleventh Amendment Immunity
Plaintiff has not filed objections as to the Magistrate Judge's recommendation that Plaintiff's monetary claims against the Defendants in their official capacities be granted under the Eleventh Amendment. After a review of the report and recommendation, the Court GRANTS Defendants' motion to dismiss on Eleventh Amendment grounds to the extent that Plaintiff seeks monetary ...