John Shaw v. Timothy Lindgren

• Court: District Court, C.D. California
• Decided: December 1, 2021
• Docket: 2:19-cv-02700
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 JOHN SHAW, ) NO. CV 19-2700-DMG (AGR) ) 11 Plaintiff, ) ) ORDER ACCEPTING FINDINGS AND 12 v. ) RECOMMENDATIONS OF UNITED ) STATES MAGISTRATE JUDGE 13 TIMOTHY LINDGREN, et al., ) ) 14 Defendants. ) ) 15 16 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 17 Complaint, records on file, the Report and Recommendation (“Report”) of the 18 magistrate judge, and Plaintiff’s objections. Further, the Court has engaged in a de 19 novo review of those portions of the Report to which Plaintiff has objected. The Court 20 accepts the findings and recommendation of the Report. 21 Plaintiff filed a document entitled “Request Court to Create Record of 22 Magistrate Judge’s Report and Recommendation.” (Dkt. No. 56.) Plaintiff lists 23 various procedures, including Plaintiff’s right to a record of evidence presented, to 24 call witnesses at trial, to know opposing evidence, to cross examine adverse 25 witnesses, and to have an unbiased tribunal. 26 The Report explained the legal standard applicable to Defendants’ motion to 27 dismiss the First Amended Complaint. (Report at 4-5.) A court generally must limit 28 its review to the operative complaint and does not consider outside evidence. See 1 part of the complaint and matters that are properly the subject of judicial notice may 2 be considered. Id. To the extent Plaintiff requests a trial at which he presents 3 evidence and cross examines adverse witnesses, such procedures are not available 4 on a motion to dismiss a complaint. Plaintiff does not identify any facts he would 5 present that would cure the deficiencies identified in the Reports on the motions to 6 dismiss the original complaint and the First Amended Complaint. 7 Plaintiff also filed a document entitled “Reject Report and Recommendation” 8 and request for trial. (Dkt. No. 57.) Plaintiff alleges that Defendant violated the 9 Affordable Care Act (“ACA”) and associated statutes and regulations; discriminated 10 against Plaintiff and denied him equal protection because of his Medicaid plan by 11 substituting QVAR for Flovent to treat Plaintiff’s chronic obstructive pulmonary 12 disease (“COPD”); and violated Plaintiff’s First Amendment rights in failing to redress 13 Plaintiff’s grievances about its violations of the ACA statutes and regulations. Plaintiff 14 complains that Defendant Lundgren is no longer employed by the Defendant, which 15 has not provided any forwarding address. 16 The First Amended Complaint did not allege a cause of action under the ACA. 17 42 U.S.C. § 18116. Section 18116 prohibits discrimination on the basis of race, 18 color, or national origin under Title VI of the Civil Rights Act (42 U.S.C. § 2000d, et 19 seq.), on the basis of sex under Title IX of the Education Amendments (20 U.S.C. § 20 1681, et seq.), on the basis of age under 42 U.S.C. § 6101, et seq., and on the basis 21 of disability under the Rehabilitation Act § 504. Doe v. CVS Pharm., Inc., 982 F.3d 22 1204, 1208-09 (9th Cir. 2020), cert. granted, 2021 WL 2742790 (2021) (granted in 23 part limited to question 1 as to whether § 504 permits disparate impact claim). To 24 state a claim for discrimination on the basis of disability, a plaintiff must allege that 25 “(1) the plaintiff is an individual with a disability; (2) she is otherwise qualified to 26 receive the benefit; (3) she was denied the benefits of the program solely by reason 27 of her disability; and (4) the program receives federal financial assistance.” Schmitt 28 v. Kaiser Found. Health Plan, 965 F.3d 945, 954 (9th Cir. 2020); see also Doe, 982 1 F.3d at 1210-12 (examining whether disabled persons were denied meaningful 2 access to ACA-provided benefit). Plaintiff’s objections do not appear to complain of 3 discrimination under any of these bases, and in addition do not appear to complain 4 about denial of benefits for treatment of a disability, as distinguished from an 5 argument over the desirability of alternative treatments. Nevertheless, because it is 6 unknown whether Plaintiff can amend his complaint to state a claim under the ACA, 7 Plaintiff will be granted leave to amend. See Schmitt, 965 F.3d at 960 (finding that 8 second amended complaint challenging exclusion of coverage for hearing aids other 9 than cochlear implants failed to state claim for discrimination based on disability but 10 reversing denial of leave to amend). 11 IT IS ORDERED that Defendant’s motion to dismiss the First Amended 12 Complaint under Fed. R. Civ. P. 12(b)(6) is granted with leave to file a Second 13 Amended Complaint within 30 days after entry of this Order. 14 If Plaintiff does not file a timely Second Amended Complaint, this action will be 15 dismissed. 16 If Plaintiff chooses to file a Second Amended Complaint, it must be filed no 17 later than 30 days after the entry of this Order; bear the docket number assigned in 18 this case; be labeled “Second Amended Complaint”; and be complete in and of itself 19 without reference to any prior complaint, or any other pleading, attachment or 20 document. Further, if Plaintiff chooses to proceed with this action, plaintiff must use 21 the blank Central District civil rights complaint form accompanying this order, must 22 sign and date the form, must completely and accurately fill out the form, and must 23 use the space provided in the form to set forth all of the claims that he wishes to 24 assert in his Second Amended Complaint. 25 26 27 28 1 The Clerk is directed to provide plaintiff with a blank Central District civil rights 2 || complaint form. 3 4 | DATED: December 1, 2021 Melly Jn, _ 5 Unit States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28