Summary
finding that allegations that defendant conducted a "rudimentary" examination that failed to document cuts and bruises did not rise to the level of a constitutional violation because there was no indication that the "lack of care was the result of anything other than inadvertence, negligence, or even malpractice"
Summary of this case from Righetti v. California Department of Corrections and RehabilitationOpinion
Case No. CV 13-1703-CAS (DFM)
12-30-2013
OSCAR MACHADO, Petitioner, v. CALIFORNIA DEPARTMENT OF CORRECTIONS et al., Respondent.
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the First Amended Complaint and other papers along with the attached Report and Recommendation of the United States Magistrate Judge, and has made a de novo determination of the Report and Recommendation.
IT IS HEREBY ORDERED that:
1. The Report and Recommendation is approved and accepted.
2. Plaintiff's second and fourth claims against defendants Cate, McEwen, Jackson, Ynson, Wofford, Willams, Galaviz, Ocegueda, Mora, Thomas, Curiel, and Wilcox are dismissed with leave to amend for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).
3. The following claims are dismissed without leave to amend:
(a) the deliberate indifference portion of the first claim for relief as to defendants Hall and Acosta;
(b) the fifth claim for relief for medical negligence; and
(c) the sixth claim for relief for violation of Government Code § 845.6 as to defendants Hall and Acosta
If Plaintiff wishes to pursue this action in this Court, he must file a Second Amended Complaint within thirty-five (35) days of the date of this Order Accepting the Report and Recommendation is filed. The Second Amended Complaint, bearing the number CV 13-1703-CAS (DFM), must be a complete and independent document and must not refer to prior pleadings. Plaintiff is cautioned that failure to file a Second Amended Complaint within the time specified by this Order may result in the dismissal of this action with prejudice on the grounds stated in the Report and Recommendation of the United States Magistrate Judge and/or for failure to prosecute.
In preparing a Second Amended Complaint, Plaintiff must bear in mind the deficiencies of the current pleading, and must assure that they are not repeated. Plaintiff must take particular note of the following guidelines:
1. Plaintiff must set forth the jurisdictional grounds for his claims at the outset of the complaint.
2. The complaint must include only factual allegations directly relevant to Plaintiff's claims, which must be stated in separate, numbered paragraphs (preferably in chronological order), each limited to a single set of circumstances. The facts should be stated in simple, complete sentences. Repetition should be avoided.
3. The complaint must clearly identify the specific acts on which each claim is based. Insofar as possible, the allegations should include the date, time, place, and circumstances of the offending conduct by each defendant, a clear statement of what each defendant did or failed to do, and the damages or injury suffered by Plaintiff as a result of each defendant's conduct.
4. If civil rights violations are claimed, the complaint must specifically set forth the federal constitutional right or rights infringed with respect to each alleged wrongful act or omission.
IT IS FURTHER ORDERED that the Clerk shall serve forthwith a copy of this Order on Plaintiff.
__________________________
CHRISTINA A. SNYDER
United States District Judge