Haynes v. Chau

• Court: District Court, S.D. California
• Decided: July 20, 2021
• Docket: 3:19-cv-02257
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 EARL EUGENE HAYES, CDCR #H- Case No.: 19cv2257-JAH (KSC) 23481, 10 ORDER ADOPTING REPORT AND Plaintiff, 11 RECOMMENDATIONS [Doc. No. 18] v. 12 DR. JOHN CHAU, Physician and 13 Surgeon, 14 Defendant. 15

16 For the reasons set forth below, this Court ADOPTS the Report and 17 Recommendations (“Report”) submitted by the magistrate judge pursuant to 28 U.S.C. § 18 636(b)(1), Doc. No. 18, and Defendant’s Motion to Dismiss (“Motion”), Doc. No. 11, is 19 hereby GRANTED without leave to amend. 20 BACKGROUND 21 On November 25, 2019, Plaintiff Eugene Hayes (“Plaintiff”), a state prisoner 22 proceeding pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 23 U.S.C. § 1983, alleging his rights under the United States Constitution were violated at 24 the Richard J. Donovan Correctional Center (“RJD”) by Defendant John Chau, M.D. 25 (“Defendant”), because he was deliberately indifferent to Plaintiff’s serious medical 26 needs. The Complaint also includes a state law cause of action against Dr. Chau for 27 medical negligence. See Doc. No. 1. 28 1 Plaintiff also filed a motion to proceed in forma pauperis (“IFP”) on November 25, 2 2019, pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. On March 16, 2020, the Court 3 granted Plaintiff’s IFP motion and issued summons. See Doc. Nos. 9, 10. 4 On May 27, 2020, Defendant filed the instant motion to dismiss, seeking dismissal 5 of the medical negligence cause of action against him in Plaintiff’s Complaint for failure 6 to state a claim pursuant to Federal Rule of Procedure 12(b)(6). See Doc. No. 11. 7 Plaintiff filed a response in opposition to the motion to dismiss on August 5, 2020. 8 See Doc. No. 15. Defendant subsequently filed its reply on August 17, 2020. See Doc. 9 No. 17. 10 On December 7, 2020, Magistrate Judge Karen S. Crawford submitted the Report 11 to this Court recommending that Plaintiff’s state negligence allegations be dismissed for 12 failure to allege facts indicating compliance with or exception from the presentation 13 requirements in California’s Government Claims Act. See Doc. No. 18. Plaintiff filed 14 his response to the Report and therein agrees with the dismissal of the state law claims 15 only. See Doc. No. 21. 16 DISCUSSION 17 The district court’s role in reviewing a magistrate judge’s report and 18 recommendation is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 19 U.S.C. § 636(b)(1). When a party objects to the magistrate judge’s report and 20 recommendation, the district court “shall make a de novo determination of those portions of 21 the report . . . to which objection is made,” and may “accept, reject, or modify, in whole or in 22 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); 23 see also Fed. R. Civ. P. 72(b)(3). 24 When no objections are filed, the district court is not required to conduct a de novo 25 review of the magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 26 F.3d 992, 1000 n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s 27 report and recommendation] is only required when an objection is made”); United States 28 v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 1 636(b)(1)(c) “makes it clear that the district judge must review the magistrate judge’s 2 || findings and recommendations de novo if objection is made, but not otherwise’). This rule 3 ||of law is well established within the Ninth Circuit and this district. See Hasan v. Cates, 4 11-cv—1416, 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in 5 entirety, and without review, a report and recommendation because neither party filed 6 || objections to the report despite having the opportunity to do so); accord Ziemann vy. Cash, 7 ||No. 11—cv—2496, 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. 8 || Poulos, No. 08—cv—1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.). 9 Here, the Plaintiff concedes to the dismissal of his state law cause of action against 10 ||the Defendant for medical negligence. See Doc. No. 21. Thus, in the absence of any 11 || objections, the Court ADOPTS the Report. However, because Plaintiff failed to file his 12 || claim within the legally specified time period under California’s Government Claims Act, 13 motion to dismiss is GRANTED without leave to amend. See Doe v. United States, 58 14 || F.3d 494, 497 (9th Cir. 1995) ([A] district court should grant leave to amend .. . unless it 15 || determines that the pleading could not possibly be cured by the allegation of other facts’’). 16 CONCLUSION AND ORDER 17 For the reasons stated in the Report, which are incorporated herein by reference, 18 || Defendant’s motion to dismiss, [Doc. No. 11], is GRANTED, and the state law cause of 19 action is DISMISSED without leave to amend. The Clerk of Court shall enter judgment 20 || reflecting the foregoing. 21 IT IS SO ORDERED. 22 23 ||DATED: — July 20, 2021

25 %6 J A. HOUSTON YNITED STATES DISTRICT JUDGE 27 28