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Lomax v. Canlas

United States District Court, Ninth Circuit

May 23, 2013

PETER ROMERO LOMAX, Plaintiff,
v.
CANLAS; WHITEHEAD; FARINAS; LEHV; CHOO; JAYASUNDARA; JOHN LUBISICH; K.L. HAWTHORNE; MATTHEW KATE; N. GRANNIS; E. FRANKLIN; MEDICAL AUTHORIZATION REVIEW COMMITTEE; TYLER; R. HERNANDEZ; SILVA; E. ROMERO; G. CASSESI, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the court is the Report and Recommendation (ECF No. 91) filed by United States Magistrate Judge William McCurine recommending that the Motion to Dismiss filed by Defendant Levi Lehv, M.D. be granted (ECF No. 73).

BACKGROUND

On October 26, 2010, Plaintiff, formerly incarcerated at R.J. Donovan Correctional Facility ("Donovan") and proceeding pro se, initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). In the Complaint, Plaintiff alleges that Defendants violated his Eighth Amendment rights by failing to provide adequate medical care while Plaintiff was incarcerated at Donovan from 2007 to 2009.

On October 19, 2012, Defendant Dr. Lehv filed the Motion to Dismiss, contending that, inter alia, Plaintiff failed to state a claim against Dr. Lehv for deliberate indifference to his medical needs under the Eighth Amendment. (ECF No. 73). On November 30, 2012, Plaintiff filed an opposition to the Motion to Dismiss. (ECF No. 84). On December 14, 2012, Dr. Lehv filed a reply. (ECF No. 87).

On March 28, 2013, the Magistrate Judge issued the Report and Recommendation, recommending that Dr. Lehv's Motion to Dismiss be granted, and that Plaintiff's claims against Dr. Lehv be dismissed with prejudice. (ECF No. 91). The Report and Recommendation concluded:

IT IS HEREBY ORDERED that no later than April 15, 2013, any party to this action may file written objections with the Court.... The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order.

Id. at 10 (citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)). The docket reflects that no objections to the Report and Recommendation have been filed.

REVIEW OF THE REPORT AND RECOMMENDATION

The duties of the district court in connection with a report and recommendation of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district judge must "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). The district court need not review de novo those portions of a report and recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).

After reviewing the Report and Recommendation, the record in this case, and the submissions of the parties regarding the claims against Dr. Lehv, the Court finds that the Magistrate Judge correctly set forth the applicable legal standards, and correctly applied those standards to the allegations of Plaintiff's Complaint. The Magistrate Judge correctly found that Plaintiff has failed to state a plausible Eight Amendment cause of action against Dr. Lehv. For the reasons stated in the Report and Recommendation, and based upon Plaintiff's failure to object to the Report and Recommendation, the Court further adopts the recommendation that Plaintiff's claims against Dr. Lehv should be dismissed without leave to amend.

CONCLUSION

IT IS HEREBY ORDERED that the Report and Recommendation is ADOPTED in its entirety. (ECF No. 91). The Motion to Dismiss is GRANTED. (ECF No. 73). Plaintiff's claims against Defendant Lehv are dismissed without leave to amend.


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