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Sisneros v. Krittman

United States District Court, S.D. California

June 28, 2016

JOSEPH C. SISNEROS, Plaintiff,
v.
S. KRITTMAN and J. DAVIS, Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT [ECF NOS. 43, 49]

          HON. GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         On August 31, 2015, Plaintiff Joseph C. Sisneros (“Plaintiff”), a prisoner proceeding pro se, filed a First Amended Complaint (“FAC”) pursuant to 42 U.S.C. § 1983. (ECF No. 41.) On October 2, 2015, Defendants S. Krittman and J. Davis (“Defendants”) filed a Motion to Dismiss Plaintiff’s FAC. (ECF No. 43.) Plaintiff filed a Response in Opposition nunc pro tunc to October 26, 2015. (ECF No. 45.) On February 9, 2016, the Magistrate Judge issued a Report and Recommendation (“R&R”) recommending granting Defendants’ Motion to Dismiss FAC pursuant to 28 U.S.C. § 636(b)(1). (ECF No. 49.) Plaintiff filed an Objection to the R&R nunc pro tunc to March 4, 2016. (ECF No. 52.) For the reasons that follow, the Court hereby OVERRULES Plaintiff’s Objection to the Magistrate Judge’s R&R (ECF No. 52), ADOPTS the Magistrate Judge’s R&R in its entirety (ECF No. 49), and GRANTS Defendants’ Motion to Dismiss FAC without leave to amend (ECF No. 43).

         FACTUAL AND PROCEDURAL HISTORY[1]

         On April 14, 2014, Plaintiff, a state prisoner currently incarcerated at the California Health Care Facility in Stockton, California, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No.1.) Plaintiff’s initial Complaint named defendants Brown and Mendez, correctional officers; Davis, a prison psychiatrist; and Krittman, a prison psychologist, all who are employed at Richard J. Donovan Correctional Facility (“RJD”), where Plaintiff was incarcerated in September and November 2013. (Id. at 2-3.) Plaintiff alleged that all defendants acted with deliberate indifference to his safety in violation of the Eighth Amendment by failing to protect him from being attacked by his cellmate, Jesus Gomez (“Gomez”). (Id. at 3-4.) Plaintiff alleged that Brown and Mendez were deliberately indifferent by placing Plaintiff in the same cell with Gomez despite knowing that Gomez is “crazy” (id. at 2-3), and that Davis and Krittman were deliberately indifferent by failing to prescribe psychiatric medication to Gomez (Id. at 2, 4).

         On August 6, 2015, the Court granted Brown and Mendez’s Motion for Summary Judgment based on Plaintiff’s failure to exhaust his administrative remedies[2] and granted Davis and Krittman’s Motion to Dismiss Plaintiff’s Complaint for failure to state a claim. (ECF No. 34.)

         On August 31, 2015, Plaintiff filed a FAC against Defendants Davis and Krittman. (ECF No. 41.) Plaintiff alleges that he read and informed Davis about a letter from Gomez’s mother addressed to Gomez, which stated that “Gomez should be on psych. meds” because he “gets very unsettled.” (Id. at 3.) Plaintiff claims that he cautioned Davis that “a problem could develop” if Gomez was not given psychiatric medication. (Id.) Plaintiff also alleges that he observed and informed Davis about Gomez’s “demented attitude, ” which involved “talking loud to an imaginary audience” and “making scary, angry faces.” (Id.) Plaintiff alleges that Davis was deliberately indifferent because he “got rid” of Plaintiff with “haste, ” and did not check Gomez’s central file. (Id.) Plaintiff claims that one week before he was assaulted by Gomez, Krittman had a one-on-one session with Gomez. (Id. at 4.) Plaintiff alleges that Krittman was deliberately indifferent because he “failed to detect the dangerous behavior” and failed to medicate Gomez. (Id.) Plaintiff contends that Gomez “displayed his demented behavior” when Plaintiff introduced him to Krittman, and that he saw fear on Krittman’s face during the meeting with Gomez. (Id.)

         On October 2, 2015, Defendants filed a Motion to Dismiss Plaintiff’s FAC on the grounds that Plaintiff does not allege facts sufficient to support a claim for deliberate indifference under the Eighth Amendment. (ECF No. 43 at 1.) Specifically, Defendants argue that Plaintiff does not plead sufficient facts in his FAC that demonstrate Defendants were aware of a substantial risk of harm to Plaintiff’s health or safety. (ECF No. 43-1 at 1.) Defendants contend that Plaintiff failed to correct the deficiencies that caused the Court to dismiss his initial Complaint and that Plaintiff’s FAC should be dismissed without further leave to amend. (Id.)

         LEGAL STANDARDS

         I. Review of the Magistrate Judge’s Report and Recommendation

         The duties of the district court with respect to a magistrate judge’s report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). 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 of recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

         As to the portions of the report to which no objection is made, the Court may assume the correctness of the magistrate judge’s findings of fact and decide the motion on the applicable law. Campbell v. U.S. District Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D. Cal. 2001). Under such circumstances, the Ninth Circuit has held that a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007).

         II. Motion to Dismiss for Failure to State a Claim

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give “detailed factual allegations, ” a ...


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