United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, (Doc.
No. 32), AND DENYING THIRD MOTION FOR EXTENSION OF TIME,
(Doc. No. 31), AS MOOT ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, (Doc. No. 26), AND SEVERING AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS FOR THE FAILURE TO STATE A
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
Derrick Jesus Oden (“Plaintiff”) is a state
prisoner proceeding pro se and in forma pauperis in this
civil rights action under 42 U.S.C. § 1983. This matter
was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Relevant Procedural Background
23, 2017, the assigned Magistrate Judge issued findings and
recommendations recommending that: (1) Plaintiff's claims
against defendants at California State Prison, Lancaster be
severed and transferred to the Central District of
California; (2) this action proceed on Plaintiff's claim
against Defendants J. Acebedo, S. Swaim, and R. Thomas for
deliberate indifference in violation of the Eighth Amendment;
and (3) all other claims and defendants be dismissed from
this action. (Doc. No. 26.) Those findings and
recommendations were served on Plaintiff and contained notice
that any objections thereto were to be filed within fourteen
(14) days after service. (Id.)
requested, (Doc. Nos. 27, 29), and was granted, (Doc. Nos.
28, 30), two extensions of time to file objections to those
findings and recommendations.
10, 2017, a letter from Plaintiff was docketed. (Doc. No.
31.) The assigned Magistrate Judge construed the letter as a
motion for a preliminary injunction against prison officials
regarding the return of Plaintiff's legal property, that
Plaintiff asserted was needed to file his objections. On July
12, 2017, the assigned Magistrate Judge issued findings and
recommendations recommending that Plaintiff's motion be
denied. (Doc. No. 32.)
14, 2017, Plaintiff filed objections to the May 23, 2017
findings and recommendations, with a declaration in support.
(Doc. No. 33.) Plaintiff declares that he received his legal
property and promptly filed the objections. Those objections
were timely filed under the extensions of time that were
granted, as discussed above.
the Court adopts the findings and recommendations regarding
Plaintiff's motion for injunctive relief, and denies
Plaintiff's request as moot. The Court turns to
addressing the May 23, 2017 findings and recommendations.
May 23, 2017 Findings and Recommendations
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), this Court has conducted a de novo
review of this case and carefully reviewed the entire file,
including Plaintiff's objections. The Court finds that
the May 23, 2017 findings and recommendations are supported
by the record and by proper analysis.
objects to the findings that he has failed to state a
cognizable claim against the Facility Physician at Kern
Valley State Prison. Plaintiff objections that the physician
can be held liable for a violation of his constitutional
rights, because he alleged that the physician is responsible
for making decisions based on Plaintiff's medical file,
and the physician made an incorrect decision. On the
contrary, the Court agrees with the findings and
recommendations that Plaintiff alleges no more than a
disagreement with a diagnosis or contentions of medical
malpractice, which cannot support a cognizable claim under
§ 1983. See Toguchi v. Chung, 391 F.3d 1051,
1060 (9th Cir. 2004) (“A showing of medical malpractice
or negligence is insufficient to establish a
constitutional.”); Sanchez v. Vild, 891 F.2d
240, 242 (9th Cir. 1989) (“A difference of opinion does
not amount to a deliberate indifference to Sanchez'
serious medical needs.”).
also objects to his claim against Defendant Lee being severed
and transferred to the Central District of California,
because he believes employees like Lee work from home and he
is uncertain of where Lee is actually located. (Doc. No. 33,
p. 3.) Plaintiff asserts that he is concerned about lack of
jurisdiction. The Court finds that Plaintiff's claim
against Defendant Lee should be transferred and severed with
the other claims Plaintiff raises regarding his transfer from
California State Prison, Lancaster, and that any
jurisdictional concerns, should they arise, are most properly
evaluated by the transferee court.