United States District Court, S.D. California
ORDER: (1) APPROVING AND ADOPTING REPORT AND
RECOMMENDATION [ECF NO. 30]; (2) GRANTING IN PART AND DENYING
IN PART DEFENDANTS' MOTION TO DISMISS [ECF NO. 25];AND
(3) DENYING PLAINTIFF'S MOTION TO AMEND [ECF NO.
Cynthia Bashant United States District Judge
Michael McCaw, an inmate proceeding pro se and
in forma pauperis, filed this civil rights action
pursuant to 42 U.S.C. § 1983 regarding medical care he
received during his incarceration at Centinela State Prison.
(ECF No 1.) Plaintiff brings Eighth Amendment claims against
various Defendants, including Dr. Ajmel Sangha (Chief Medical
Officer), C. Lynch (a supervisor), and T. Kirby (a Health
Care Appeals Coordinator). On June 13, 2019, Plaintiff filed
a document titled “F.A.C. First Amended
Complaint.” (ECF No. 19.) Several months later, on
October 22, 2019, Defendants moved to dismiss Plaintiff's
claims against Defendants Sangha and Kirby. (ECF No. 25.)
Plaintiff opposed. (ECF No. 29.)
Judge Jill Burkhardt has issued a Report and Recommendation
(“R&R”), which recommends granting in part
and denying in part Defendants' motion to dismiss. (ECF
No. 30.) The R&R further recommends construing
Plaintiff's “F.A.C. First Amended Complaint,
” as a motion to amend and recommends denial of the
motion. Objections to the R&R were due on July 17, 2019.
Neither side has objected. For the reasons herein, the Court:
(1) approves the R&R in its entirety, (2) grants in part
and denies in part Defendants' motion to dismiss, and (3)
denies Plaintiff's motion to amend.
Court reviews de novo those portions of an R&R
to which objections are made. 28 U.S.C. § 636(b)(1). The
Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” Id. “The statute makes it clear,
” however, “that the district judge must review
the magistrate judge's findings and recommendations de
novo if objection is made, but not otherwise.”
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc) (emphasis in original); see
also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.
Ariz. 2003) (concluding that where no objections were filed,
the district court had no obligation to review the magistrate
judge's report). “Neither the Constitution nor the
statute requires a district judge to review, de novo,
findings and recommendations that the parties themselves
accept as correct.” Reyna-Tapia, 328 F.3d at
1121. This legal rule is well-established in the Ninth
Circuit and this district. See Wang v. Masaitis, 416
F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, de
novo review of a[n] R & R is only required when an
objection is made to the R & R.”); Nelson v.
Giurbino, 395 F.Supp.2d 946, 949 (S.D. Cal. 2005)
(Lorenz, J.) (adopting report in its entirety without review
because neither party filed objections to the report despite
the opportunity to do so); see also Nichols v.
Logan, 355 F.Supp.2d 1155, 1157 (S.D. Cal. 2004)
case, the deadline for Plaintiff to file any objections to
the R&R was July 17, 2019. (ECF No. 30 at 33.) No timely
objections have been lodged. Consequently, the Court may
adopt the R&R on that basis alone. See
Reyna-Tapia, 328 F.3d at 1121. Nonetheless, having
conducted a de novo review of the complaint, the
motion to dismiss papers, Plaintiff's “motion to
amend, ” and the R&R, the Court concludes that
Judge Burkhardt's reasoning is sound and her
recommendations are proper. The Court affirms the
R&R's conclusions and recommendations. First,
Defendants' motion to dismiss should be denied as to Dr.
Sangha because Plaintiff has sufficiently alleged that Dr.
Sangha was deliberately indifferent to Plaintiff's
serious medical needs when Dr. Sangha promised to restore
Plaintiff's prescription medications in 2016 but failed
to do so. Second, Defendants' motion should be granted
with leave to amend as to Defendant Kirby because Plaintiff
has failed to offer sufficient allegations that Defendant
Kirby was deliberately indifferent to Plaintiff's serious
medical needs based on Defendant's role as a supervisor,
and (3) Plaintiff's “motion to amend” to add
Imperial County as a Defendant should be denied for failure
to comply with the Local Rules for the filing of a motion to
amend, which require that Plaintiff include a copy of his
proposed amended complaint. S.D. Civ. L. R. 15.1. The R&R
effectively recommends denial of Plaintiff's
“motion to amend” without prejudice because the
identified deficiency is one that Plaintiff will have the
opportunity to cure as a result of any amended complaint he
chooses to file as a result of this Order.
foregoing reasons, the Court: (1) APPROVES AND ADOPTS IN ITS
ENTIRETY the R&R, (ECF No. 30); (2) GRANTS IN PART AND
DENIES IN PART Defendants' motion to dismiss, (ECF No.
25); and (3) DENIES Plaintiffs motion to amend, (ECF No. 19).
is GRANTED LEAVE TO AMEND to amend his allegations against
Defendant Kirby to correct the deficiencies Judge Burkhardt
identified. Plaintiff may also amend to add allegations
against Imperial County. Plaintiff may file an amended
complaint no later than August 30, 2019. If he
chooses to file one, Plaintiffs Amended Complaint must be
complete by itself without reference to his original
pleading. Defendants not named and any claim not re-alleged
in his Amended Complaint will be considered waived.
See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios,
Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,
1546 (9th Cir. 1989) (“[A]n amended pleading supersedes
the original.”); Lacey v. Maricopa Cty., 693
F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed
with leave to amend which are not re-alleged in an amended
pleading may be “considered waived if not
repled.”). If Plaintiff does not file an amended
complaint by August 30, 2019, then only Plaintiffs claims
against Defendants Sangha and Lynch will remain.
 California Correctional Healthcare
Services was dismissed from this case upon a mandatory
screening of the Complaint. (ECF No. 9 at 8.) Accordingly,