United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION [DOC. NO.
35] AND DENYING DEFENDANTS' MOTION TO DISMISS [DOC. NO.
Cathy Ann Bencivengo United States District Judge.
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.]
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.]
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.]
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.]
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.
OF REPORT AND RECOMMENDATION
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).
Deputy Director Lewis
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
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. [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 ...