(PS) Manning v. United States ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. MANNING, No. 2:19-cv-00494-TLN-AC 12 Plaintiff, 13 v. ORDER 14 UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, 15 Defendant. 16 17 Plaintiff Anthony L. Manning (“Plaintiff”), proceeding pro se, has filed this action 18 pursuant to the Federal Tort Claims Act (“FTCA”). The matter was referred to a United States 19 Magistrate Judge pursuant to Local Rule 302(c)(21). 20 On September 20, 2019, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within twenty-one days. (ECF No. 29.) On 23 September 24, 2019, Plaintiff filed his “Objections to Magistrate Judge’s Findings and 24 Recommendations.” (ECF No. 30.) On October 8, 2019, Defendant the United States1 25 /// 26 1 The Court notes Plaintiff initially sued the United States Department of Veterans Affairs 27 but the proper defendant under the FTCA in this action is the United States. See Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (per curiam). As noted herein, the docket shall be 28 corrected accordingly. 1 (“Defendant”) filed a “Response to Plaintiff’s Objections to Findings and Recommendations.” 2 (ECF No. 31.) 3 This Court reviews de novo those portions of the proposed findings of fact to which 4 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 5 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As 6 to any portion of the proposed findings of fact to which no objection has been made, the Court 7 assumes its correctness and decides the motions on the applicable law. See Orand v. United 8 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 9 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 10 Having carefully reviewed the entire file under the applicable legal standards, the Court 11 finds the Findings and Recommendations to be supported by the record and by the magistrate 12 judge’s analysis. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The Findings and Recommendations, filed September 20, 2019 (ECF No. 29), are 15 adopted in full; 16 2. Defendant’s Motion to Dismiss (ECF No. 16) is GRANTED IN PART AND DENIED 17 IN PART as follows: 18 a. DENIED as to Plaintiff’s claim of medical negligence by Dr. Amy Fuglei; and 19 b. GRANTED as to Plaintiff’s claim that Defendant failed to provide adequate 20 treatment related to sleep apnea and related respiratory issues; and 21 3. The Clerk of the Court is directed to substitute the United States of America as the sole 22 Defendant in this case. 23 IT IS SO ORDERED. 24 Dated: November 12, 2019 25 26 27 28