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Mario K. Moore v. Michael Mcdonald


March 31, 2012



Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On August 23, 2011, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. On September 13, 2011, defendants filed objections to the findings and recommendations. On September 26, 2011, plaintiff filed a reply to defendants' objections.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. The court notes that defendant cites Henderson v. Felker, No. CIV S-06-1325 FCD EFB P, 2008 WL 619082, 2008 U.S. LEXIS 16518 (E.D. Cal. Mar. 4, 2008), for the proposition that "the Plata stipulation additionally includes clauses to address the concerns of specific prisoners." (ECF 35 at 3 (emphasis original).) However, Henderson was reviewed by the Ninth Circuit and remanded for further proceedings. In a memorandum decision, the Ninth Circuit explained:

The district court dismissed the claims in part because the California Department of Corrections and Rehabilitation's policies and procedures for treating diabetic inmates were previously found to meet the constitutional standard of care. Because we can find no support in the record for that conclusion, we vacate the judgment dismissing these claims against Dovey, Felker, and Roche, and remand for further proceedings. On remand, the district court should consider, independent of Plata v. Schwarzenegger, whether Henderson's amended complaint states a claim against those defendants, and if not, whether leave to amend is appropriate.

Henderson v. Felker, 347 F. App'x 345, 346 (9th Cir. 2009). On remand, the district court found that "[p]laintiff's amended complaint states an Eighth Amendment claim against defendants Dovey, Felker and Roche." Henderson v. Felker, No. CIV S-06-1325 FCD EFB P, 2010 WL 4823690 (E.D. Cal. Nov. 22, 2010). Thus, Henderson's subsequent history undercuts defendant's reference of the case here.

Defendant also cites James v. Wilber, No. 1:08-cv-00351-DLB (PC), 2009 U.S. Dist. LEXIS 95761, 2009 WL 3334894 (E.D. Cal. Oct. 14, 2009), as a case that dismissed an inmate's requested injunctive relief based on a nurse's "failure to provide an appropriate soft diet following oral surgery." (ECF 35 at 4.) However, the district court held that "[p]laintiff's requested relief is for an injunction ordering Corcoran [State Prison] to update their medical procedures and medical staffto comply with and perform all duties prescribed. . . . Thus, Plaintiff's claims for injunctive relief are subsumed within the Plata class action." James, 2009 WL 3334894 at *3 (quotation and citation omitted). The plaintiff in James was not seeking individual injunctive relief. Therefore, this decision also does not support defendant's argument.

Finally, defendant cites Estrada v. Rowe, No. C 08-2801 MMC (PR), 2011 U.S. Dist. LEXIS 64952, 2011 WL 2444059 (N.D. Cal. June 17, 2011), which dismissed a claim for injunctive relief, finding the claim fell within the subject matter of Plata. Estrada did not provide a detailed reasoning for its decision. Without more, this court is not prepared to apply it to the case at bar.

In sum, having carefully reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed August 23, 2011 are adopted in full, including the construction of plaintiff's claims at page 7, lines 1 through 8; and

2. Defendant's motion to dismiss (Dkt. No. 27) is denied; defendant is ordered to answer the complaint within twenty-one days of the date of this order.


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