ORDER:

1) ADOPTING REPORT AND RECOMMENDATION; and

2) GRANTING DEFENDANTS' MOTION TO DISMISS

[Docket Nos, 12, 21]

ROGER T. BENITEZ, District Judge.

On August 8, 2016, Plaintiff Stephen Dragasits, a state prisoner incarcerated at the Richard Donovan Correctional Facility ("RJD"), and proceeding pro se and in forma pauperis ("IFP"), filed a complaint alleging several civil rights violations under federal and state law. (Docket No. 1.) On November 15, 2016, this Court sua sponte dismissed certain claims and defendants in Plaintiffs Complaint pursuant to its obligation to review and dismiss portions of IFP complaints which are frivolous, malicious, fail to state a claim, or seek damages from defendants who are immune. 28 U.S.C. §§ 1915(e)(2)(B), 1915(A)(b). (Docket No. 5.) Thereafter, remaining Defendants Dr. Jin Yu ("Yu"), Dr. R. Walker ("Walker"), Dr. S. Roberts ("Roberts"), Dr. M. Glynn ("Glynn"), and California Department of Corrections and Rehabilitation ("CDCR") Deputy Director J. Lewis (collectively, "Defendants") filed a Motion to Dismiss the remaining claims in Plaintiffs Complaint. (Docket No. 12.) The Motion is fully briefed.

Magistrate Judge Jill L. Burkhardt issued a thoughtful and thorough Report and Recommendation ("Report") recommending this Court grant Defendants' Motion and dismiss Plaintiffs Complaint. (Docket No. 21.) Specifically, Magistrate Judge Burkhardt found that Plaintiffs Complaint fails to state a claim for Eighth Amendment violations or three California state law claims against any of the Defendants. After determining Plaintiff failed to sufficiently allege the existence of a constitutional violation, Magistrate Judge Burkhardt concluded that Defendants are entitled to qualified immunity. The day before objections were due, Plaintiff filed a motion for an extension of time to file his objections, which the Court granted. (Docket Nos. 23-24.) Plaintiff subsequently filed objections to the Report. (Docket No. 25.) Defendant did not file any objections or a reply to Plaintiffs objections. For the reasons that follow, the Report is ADOPTED.

BACKGROUND

The Report and Recommendation carefully details the relevant factual background of this case, which the Court incorporates by reference.

DISCUSSION

A district judge "may accept, reject, or modify the recommended disposition" of a magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). "[T]he district judge must determine de novo any part of the [report and recommendation] that has been properly objected to." Fed. R. Civ. P. 72(b)(3). However, "[t]he statute makes it clear 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); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). "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.

Plaintiff generally objects to the Report's conclusion that he failed to state a claim against all Defendants for deliberate indifference to his serious medical need in violation of the Eighth Amendment. Having conducted a de novo review, the Court adopts the Report and Recommendation in full.

Plaintiffs Complaint alleges that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment because they did not issue him a low bunk chrono. (Compl. at 27-34.) In essence, Plaintiffs alleges that Defendants were aware that his placement in an upper bunk put him at a substantial risk of falling from it, and did not take reasonable steps to minimize this risk or protect him from injury. (Id. at 28.)

"The Constitution `does not mandate comfortable prisons[.]'" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). "[B]ut neither does it permit inhumane ones, and it is now settled that `the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment[.]'" Id. at 832 (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). Among other protections, the Eighth Amendment "imposes duties on [prison] officials, who must ... ensure that inmates receive adequate food, clothing, shelter, and medical care, and must `take reasonable measures to guarantee the safety of the inmates[.]'" Id. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)).

To state a claim under the Eighth Amendment for inadequate medical care, a plaintiff must allege facts to indicate that a defendant was "deliberately] indifferen[t]" to his "serious medical needs." Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This includes allegations under "both an objective standard — that the deprivation was serious enough to constitute cruel and unusual punishment — and a subjective standard — deliberate indifference." Id. at 1066 (quoting Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012)).

Plaintiff appears to object to the Report on two grounds: 1) that he sufficiently alleged a serious medical need, and 2) that he sufficiently alleged deliberate indifference. (See Pl.'s Obj. at 2-3.) Plaintiff did not raise any objections to dismissal of his state law claims. Plaintiffs objections are unfounded. First, the Report clearly states that Magistrate Judge Burkhardt concluded for purposes of the motion to dismiss that Plaintiff sufficiently pled facts to satisfy the serious medical need component noting: "Defendants do not dispute that Plaintiff adequately alleges a serious medical need." (Report at 14.) The Court, having reviewed the parties' briefings, agrees with Magistrate Judge Burkhardt's conclusion. Therefore, Plaintiffs objection on this ground is moot.

Second, as to the sufficiency of Plaintiff's allegations regarding deliberate indifference, the Court agrees that Plaintiff did not allege specific facts from which it may infer any of the Defendants acted with deliberate indifference. "A prison official is deliberately indifferent under the subjective element of the test only if the official `knows of and disregards an excessive risk to inmate health and safety.'" Colwell, 763 F.3d at 1066 (quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)). "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Colwell, 763 F.3d at 1066 (quoting Farmer, 511 U.S. at 837) (internal quotations marks omitted). "Deliberate indifference `may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.'" Id. at 1066 (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). However, a plaintiff must allege that one or more defendants acted with more than lack of ordinary due care. Id. at 1066 (citing Farmer, 511 U.S. at 835).

In his objection, Plaintiff only provides his own general assumptions and legal conclusions that: 1) all Defendants were aware he had previously fallen from his assigned upper bunk; 2) all Defendants failed to take reasonable measures to prevent future falls when they refused to provide him with a lower bunk chrono; and 3) all Defendants were therefore deliberately indifferent to his serious medical needs. Likewise, he argues without providing any factual basis that "Defendants course of treatment was medically

The Court finds Magistrate Judge Burkhardt's analysis sound. In particular, the Report provides thorough analysis tailored to each of the individual Defendants that explains in detail the insufficiency of the Complaint's deliberate indifference allegations, both in their individual and supervisory capacities as alleged in Plaintiffs Complaint. Moreover, the Report's determinations are supported by Plaintiffs own medical records, which he attached to his Complaint.1 In short, the Court agrees that Plaintiffs Complaint fails to set forth facts to suggest any of the Defendants acted with deliberate indifference, and incorporates by reference Magistrate Judge Burkhardt's analysis on this issue.

CONCLUSION

For the reasons stated above, the Report and Recommendation is ADOPTED, and Defendants' Motion to Dismiss is GRANTED. Plaintiffs Complaint is DISMISSED without leave to amend as to the following claims:

Plaintiffs Complaint is DISMISSED with leave to amend as to the following claims:

Plaintiff may file a first amended complaint (FAC) on or before October 30, 2017 that addresses the deficiencies identified in this Order and Magistrate Judge Burkhardt's Report as to the claims Plaintiff has been granted leave to amend. Additionally, Plaintiff need not refile the medical records and other exhibits he included with his initial Complaint; the Court shall incorporate them by reference in the FAC.

IT IS SO ORDERED.