United States District Court, S.D. California
JOSEPH C. SISNEROS, Plaintiff,
S. KRITTMAN and J. DAVIS, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT
[ECF NOS. 43, 49]
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
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).
AND PROCEDURAL HISTORY
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).
August 6, 2015, the Court granted Brown and Mendez’s
Motion for Summary Judgment based on Plaintiff’s
failure to exhaust his administrative remedies and granted Davis
and Krittman’s Motion to Dismiss Plaintiff’s
Complaint for failure to state a claim. (ECF No. 34.)
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.
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.)
Review of the Magistrate Judge’s Report and
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).
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).
Motion to Dismiss for Failure to State a Claim
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 ...