United States District Court, S.D. California
February 19, 2014
KEVIN DARNELL BRYANT, Plaintiff,
SELEAINA ANN THOMAS; VROOMAN; SEPULVEDA; Defendants.
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Report and Recommendation filed by the Magistrate Judge (ECF No. 137) recommending that the Motion to Dismiss filed by Defendants Vrooman and Sepulveda (ECF No. 133) be granted and that Plaintiff's remaining claims be dismissed with prejudice.
On June 19, 2009, Plaintiff, a prisoner currently incarcerated at Kern Valley State Prison and proceeding pro se and in forma pauperis, initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). On May 23, 2011, Plaintiff filed a First Amended Complaint. (ECF No. 48). In the First Amended Complaint, Plaintiff alleged that, while Plaintiff was incarcerated at Calipatria State Prison in 2006, Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment, and all Defendants "conspired together to cover up their actions and failures to act resulting from Defendant Thomas' actions." Id. at 6.
On November 27, 2012, this Court issued an Order adopting a Report and Recommendation of the Magistrate Judge and granting Defendants' Motion for Summary Judgment. (ECF No. 114). The Court found that Plaintiff failed to create a genuine issue of material fact as to whether Defendant Thomas was deliberately indifferent to Plaintiff's medical needs, found that Plaintiff failed to exhaust his administrative remedies against Defendants Vrooman and Sepulveda, and granted Plaintiff leave to amend his claims against Defendants Vrooman and Sepulveda.
On July 26, 2013, Plaintiff filed a Second Amended Complaint, which is the operative pleading. (ECF No. 132). Plaintiff alleges that Defendants Vrooman and Sepulveda were deliberately indifferent to Plaintiff's serious medical needs in August 2006.
On August 12, 2013, Defendants filed a Motion to Dismiss the Second Amended Complaint. (ECF No. 133). Defendants contend that the Second Amended Complaint should be dismissed with prejudice because Plaintiff failed to exhaust the prison's administrative remedies and the Second Amended Complaint fails to adequately allege a claim against Vrooman and Sepulveda.
On August 26, 2013, Plaintiff filed an opposition to the Motion to Dismiss (ECF No. 135), and on September 27, 2013, Defendants filed a reply (ECF No. 136).
On January 7, 2014, the Magistrate Judge issued a Report and Recommendation, recommending that this Court find that Defendants Vrooman and Sepulveda met their burden of raising and proving that Plaintiff's claims against them are not exhausted as required by 42 U.S.C. § 1997e(a). (ECF No. 137). The Magistrate Judge recommends that this Court dismiss Plaintiff's claims against Vrooman and Sepulveda with prejudice.
On January 31, 2014, Plaintiff filed an "Opposition to the Report and Recommendation." (ECF No. 138). Plaintiff "incorporate[s] by reference [Plaintiff's] opposition to the Motion to Dismiss, " and states that if the Court dismisses his claims against Vrooman and Sepulveda, Plaintiff requests that the Court dismiss the claims without prejudice. Id. at 1. On February 10, 2014, Defendants filed a reply. (ECF No. 139).
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).
After reviewing the Report and Recommendation and the record in this case de novo, the Court finds that the Magistrate Judge correctly concluded that Plaintiff failed to exhaust his administrative remedies with regard to all claims against Defendants Vrooman and Sepulveda. See ECF No. 137 at 1-23; cf. 42 U.S.C. § 1997e(a); Griffin v. Arpaio, 557 F.3d 1117, 1121-22 (9th Cir. 2009).
Even if Plaintiff had properly exhausted his claims against Vrooman and Sepulveda, the single page of substantive allegations in the Second Amended Complaint alleges that "Defendants Vrooman and Sepulveda conspired with FNP Seleaina A. Thomas to prevent [Plaintiff] from receiving pain meds and on two occasions to prevent [Plaintiff] from seeing the FNP at all." (ECF No. 132 at 3). Even if Plaintiff plausibly alleged a conspiracy, Plaintiff has failed to plausibly allege an actual deprivation of civil rights-and based upon the grant of summary judgment as to the claims against Defendant Thomas, see ECF No. 114, Plaintiff cannot establish an actual deprivation of civil rights by Thomas. See Woodrum v. Woodward Cnty., Okl., 866 F.2d 1121, 1126 (9th Cir. 1989) (conspiracy allegation, even if established, does not give rise to liability under § 1983 unless there is an actual deprivation of civil rights).
Apart from Plaintiff's conspiracy allegation, the Second Amended Complaint fails to plausibly allege that Vrooman and Sepulveda violated Plaintiff's constitutional rights. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'") (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) ("Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show deliberate indifference to serious medical needs.... First, the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendant's response to the need was deliberately indifferent.") (quotations omitted).
Plaintiff's objection to the recommendation of dismissal with prejudice is sustained; the Court dismisses the Second Amended Complaint without prejudice. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) ("If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice."). Because the Court finds that granting Plaintiff further leave to amend would be futile, the Court dismisses the Second Amended Complaint without leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962).
IT IS HEREBY ORDERED that the Report and Recommendation is ADOPTED in part, as discussed above. (ECF No. 104). The Motion to Dismiss is GRANTED. (ECF No. 133). The Second Amended Complaint is DISMISSED without prejudice and without leave to amend. The Clerk of the Court shall close this case.