(PC)Hagan v. Recarey

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA KEVIN HAGAN, ) Case No.: 1:22-cv-0562 JLT EPG ) 12 Plaintiff, ) ORDER ADOPTING IN FULL THE FINDINGS ) AND RECOMMENDATIONS, DENYING 13 v. ) PLAINTIFF’S REQUEST FOR INJUNCTIVE ) RELIEF AND DENYING DEFENDANTS’ RAUL RECAREY, et al., ) MOTION TO DISMISS ) 15 Defendants. ) (Docs. 29-2, 43, and 52) )

17 Kevin Hagan seeks to hold the defendants, who are physicians at Valley State Prison, liable for violations of federal and state law related to the medical care he has received. (See generally Doc. 29.)

19 Plaintiff requests a preliminary injunction or temporary restraining order, seeking injunctive relief in the form of an order directs Plaintiff receive a recommended back surgery and adequate pain management. (Doc. 29-2.) The magistrate judge found Plaintiff failed to show he was entitled to injunctive relief at this time, and recommended the request be denied. (Doc. 52 at 26-27.)

23 Defendants moved to dismiss the third amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 43.) The magistrate judge found Plaintiff stated cognizable claims for deliberate indifference against Drs. Sandu, Eskander, Longia, Son, and Mevi. (Doc. 52 at 12-20.) The magistrate judge found the “allegations against Defendants plausibly give rise to the inference that the failure to recommend, request, approve or order a surgery to address Plaintiff’s back condition was medically unacceptable under the circumstances.” (Id. at 17.) The magistrate judge also || found Plaintiff “sufficient alleges Dr. Son, Dr. Longia, and Dr. Mevi’s overall delay in prescribing || Plaintiff with stronger medication beyond over-the-counter medications and topical creams to addres: || his pain was medically unacceptable;” and that “Dr. Eskander’s failure to prescribe additional || medication, despite Plaintiff's reports of pain and medical history, was medically unacceptable.” (Jd.

5 || 19-20.) In addition, the magistrate judge determined Plaintiff stated cognizable claims for medical || negligence, and the claims were not barred because Plaintiff made a government claim that contained || sufficient information for the CDCR to have notice of the factual allegations and conduct an investigation. Ud. at 23-26.) Finally, although Defendants assert they are entitled qualified immunit: || the magistrate judge found “it is unclear at this early stage whether the decisions made by Defendant: || were medically acceptable in light of Plaintiff's allegations.” (/d. at 22.) Therefore, the magistrate || judge recommended Defendants’ motion to dismiss be denied. (/d.)

12 The Court served the Findings and Recommendations on all parties and notified them that any || objections were due within 30 days. (Doc. 52 at 27.) The Court advised the parties that the “failure t || file objections within the specified time may result in the waiver of rights on appeal.” (d., citing || Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Neither Plaintiff nor Defendants filed || objections, and the time to do so has passed.

17 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. Havi || carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported || by the record and proper analysis. Thus, the Court ORDERS: 20 1. The Findings and Recommendations dated July 31, 2024 (Doc. 52) are ADOPTED.

21 2. Plaintiffs request for injunctive relief (Doc. 29-2) is DENIED.

22 3. Defendants’ motion to dismiss (Doc. 43) is DENIED.

24 IT IS SO ORDERED.

25 || Dated: _ September 10, 2024 ( LAW pA L. wan 26 TED STATES DISTRICT JUDGE