The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING
DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND (Doc. No. 24)
Presently before the Court are the Plaintiff's objections to the Report and Recommendation ("R&R"), [Doc. No. 24.], issued on October 12, 2011, by Magistrate Judge Barbara Lynn Major granting Defendants motion to dismiss without prejudice and with leave to amend and denying the Plaintiff's request for injunctive relief. For the reasons set forth below, the Court hereby OVERRULES the Plaintiff's objection and ADOPTS the R&R in its entirety.
On September 20, 2010, Jawanta J. Lambert, ("Plaintiff"), a California prisoner proceeding pro and in forma pauperis, filed a civil rights suit against Licenced Vocational Nurse Shady M. Villalobos, Correctional Officer Frank Soto, and an unidentified Medical Physician pursuant to 42 U.S.C. § 1983.*fn1 [Doc. No. 1.] Plaintiff asserts that Defendants' conduct violated his Eighth Amendment right to be free from cruel and unusual punishment. [Doc. No. 1, at 3-5.] Plaintiff seeks monetary damages in the amount of $750,000 and injunctive relief preventing Defendant Villalobos from "performing unconstitutional medical practices." [Doc. No. 1, at 7.] Shady Villalobos and Frank Soto ("Defendants") filed a motion to dismiss the complaint on May 3, 2011 for failure to state a claim. [Doc. No. 17.] Plaintiff opposed the motion on June 30, 2011, and Defendants filed a reply on July 14, 2011. [Doc. Nos. 22 and 23.]
These matters were referred to Magistrate Judge Barbara L. Major for report and recommendation ("R&R") pursuant to 28 U.S.C. § 636. Magistrate Judge Major issued the R&R, [Doc. No. 24], which recommends the Defendants' motion to dismiss be granted without prejudice and with leave to amend and Plaintiff's request for injunctive relief be denied. [Doc. No. 24, at 12, 13.]On November 14, 2011, Plaintiff filed a motion for an extension of time to file an objection to the R&R. [Doc. No. 27.] On November 16, 2011, the motion for extension of time was granted and Plaintiff filed his Objection on November 21, 2011. [Doc. No. 28 and 29.] On November 11, 2011, Defendants filed a Notice of Non-Objection to the R&R. [Doc. No. 25.] The Court considered the Plaintiff's Objection before issuing this order.
According to the complaint, Plaintiff was involved in an "incident" on April 21, 2009, after which he sought medical treatment from a licensed vocational nurse, Defendant Villalobos. [Doc. No. 1 at 3.] During the evaluation, Defendant Villalobos completed a medical report of injury form in which she documented Plaintiff's injuries. Id. The injuries mentioned in the report were: (1) pain in the back;
(2) pain in the left shoulder; (3) abrasions; and (4) scratches with dried blood. Id. Plaintiff alleges that Defendant Villalobos refused to treat these injuries and responded to Plaintiff's request for first aid by stating that "you shouldn't have been fighting with staff" before walking away. Id.
After his medical evaluation with Defendant Villalobos, Plaintiff was escorted back to a holding cell via golf cart by Correctional Officer A. Gonzales and Defendant Soto. Id. at 5. During the ride, Plaintiff told Defendant Soto that Defendant Villalobos refused to treat his injuries and showed Defendant Soto that he was actively bleeding down his leg. Id. In response, Defendant Soto merely stated that Defendant Villalobos "should have taken care of it." Id. When Plaintiff informed Defendant Soto that he still needed medical attention, Defendant Soto stated "the medics will take care of it dude."
Plaintiff was then taken to his holding cell and left with a bleeding right leg and back and shoulder Id.
On May 12, 2009, Plaintiff was evaluated by an unnamed yard physician for the injuries sustained on April 21, 2009. Id. at 4. At the appointment Plaintiff complained of back and knee pain that made it difficult for him to climb in and out of the top bunk of his bed without assistance. Id. Plaintiff told the physician that he had to rest on the ground during the day or remain in his bed for long periods of time due to his injuries. Id. The physician ordered x-rays of Plaintiff's back, prescribed pain medication, and instructed Plaintiff to refrain from doing any push ups or sit ups. Id.
Plaintiff states that after his evaluations by Defendant Villalobos and the unnamed yard physician, he continued to suffer from pain in his back and knee due to Defendant Villalobos's "deliberate indifference, malpractice and neglect." Id. at 3. Plaintiff claims that as a result of his untreated injuries from April 21, 2009, he sustained further injury on May 14, 2009, when he fell "approximately five feet" to the ground from the top bunk of his bed. Id. at 3 & 4. After the fall, Plaintiff was treated at a local emergency room and housed in the facility's correctional treatment center for five days on bed rest. Id.
A district court has jurisdiction to review a Magistrate Judge's R&R's 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 ...