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Alvarez v. Ko

United States District Court, S.D. California

May 5, 2017

VICENTE ARRAIGA ALVAREZ, Plaintiff,
v.
DR. S. KO, MD., et al., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION [DOC. NO. 35] AND DENYING DEFENDANTS' MOTION TO DISMISS [DOC. NO. 24]

          Hon. Cathy Ann Bencivengo United States District Judge.

         Plaintiff Vicente Alvarez, a California prisoner, filed this civil rights complaint against Defendants under 42 U.S.C. § 1983. On March 24, 2017, Magistrate Judge Nita L. Stormes filed a Report and Recommendation recommending the Court deny the motion to dismiss filed by Defendants Dr. S. Ko, M.D., Dr. Connall McCabe, M.D., Dr. A. Sangha, C.M.E., and Deputy Director J. Lewis. [Doc. No. 35.]

         PROCEDURAL BACKGROUND

         On May 31, 2016, Plaintiff filed a Complaint alleging that Defendants Ko, McCabe, Sangha and Lewis (collectively “Defendants”) were deliberately indifferent to Plaintiff's serious medical need, in violation of the Eight Amendment. [Doc. No. 1 at 1-2.]

         On December 14, 2016, Defendants filed a motion to dismiss the Complaint. [Doc. No. 24.] On February 15, 2017, Plaintiff filed his opposition to the motion. [Doc. No. 29.] On February 23, 2017, Defendants filed a reply in support of the motion to dismiss. [Doc. No. 32.]

         On March 24, 2017, Magistrate Judge Nita L. Stormes filed a Report and Recommendation recommending that the motion to dismiss filed by Defendants be denied. [Doc. No. 35.] On April 7, 2017, Defendants filed an objection to the Report and Recommendation. [Doc. No. 37.] On April 24, 2017, Plaintiff filed a reply to the objection. [Doc. No. 38.]

         FACTUAL BACKGROUND

         Defendants do not object to the factual background provided by Magistrate Judge Stormes [Doc. No. 34 at 2-6] and, therefore, it is incorporated by reference.

         REVIEW OF 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 Rules 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 judge.” 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).

         A. Deputy Director Lewis

         Magistrate Judge Stormes found that Plaintiff sufficiently stated a claim against Deputy Director Lewis. [Doc. No. 35 at 14-15.] Defendants object to the ruling as to Director Lewis on two grounds. First, Defendants argue that Plaintiff has failed to allege any facts that establish her supervisory status over Dr. Ko. [Doc. No. 37 at 2.] However, as noted by the Magistrate Judge, Plaintiff alleges Director Lewis was responsible for the overall operation of the California Department of Corrections Health Care Department, and Director Lewis condoned the actions of her subordinate, Dr. Ko. [Doc. No. 35 at 14.] These allegation are sufficiently pled to establish that Dr. Ko was a subordinate of Director Lewis'.

         Second, Defendants object on the grounds that Plaintiff has failed to adequately plead supervisory liability on the part of Director Lewis to support a § 1983 claim. Defendants argue that Plaintiff's allegations regarding Director Lewis' level of involvement in decisions about his care are insufficient.[1] [Doc. No. 37 at 3-4.] Additionally, Defendants contend the complaint fails to adequately allege the requisite deliberate indifference on the part of Director Lewis. [Id. at 4-5.] But, as found by Magistrate Stormes, Plaintiff alleges Deputy Director Lewis did more than simply review Plaintiff's administrative appeal. [Doc. No. 35 at 14-15]. As the Recommendation reports, Plaintiff alleges that Director Lewis knew Dr. Ko refused to provide effective treatment for his chest pains and refused to refer him to a specialist and that Director Lewis condoned Dr. Ko's actions directing Plaintiff to seek medical care at his own expense and denying him medical care because it was too expensive. [Id.] Further, as Magistrate Stormes noted, Plaintiff alleges that nonetheless Deputy Director Lewis denied his 602 Appeal and that the delay in treatment has caused him harm. [Id. at 15.] Thus, Plaintiff has sufficiently stated a claim against ...


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