(PC) Azdar v. Wreston ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VICTOR MARTINEZ AZDAR, ) Case No. 1:19-cv-01064-LJO-SAB (PC) ) 12 Plaintiff, ) ) ORDER ADOPTING FINDINGS AND 13 v. ) RECOMMENDATION, AND DISMISSING ACTION FOR FAILURE TO STATE A ) 14 WRESTON, et al., COGNIZABLE CLAIM FOR RELIEF ) 15 Defendants. ) [ECF Nos. 10, 11] ) 16 ) 17 Plaintiff Victor Martinez Azdar is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 19, 2019, the Magistrate Judge recommended that the instant action be dismissed 21 for failure to state a cognizable claim for relief. The Findings and Recommendation was served on the 22 Plaintiff and contained notice that objections were to be filed within twenty-one days. Plaintiff filed 23 objections on October 17, 2019. In his objections, Plaintiff contends that his claim arises under the 24 Eighth Amendment, not the Fourteenth Amendment. However, because the first amended complaint 25 sought relief against Defendants who are all employed at Kings County Jail Medical Facility, while he 26 was a pretrial detainee, such claim arises under the Fourteenth and not the Eighth Amendment. In any 27 event, for the same reasons explained in the Magistrate Judge’s Findings and Recommendation, 28 Plaintiff’s deliberate indifference claim would fail under the Eighth Amendment standard. See Gordon 1 v. County of Orange, 888 F.3d 1118, 1124-25 n.4 (9th Cir. 2018) (The Ninth Circuit held that pretrial 2 detainee’s claims for inadequate medical care arises under the Fourteenth Amendment due process 3 clause and “must be evaluated under an objective deliberate indifference standard.” This objective 4 deliberate indifference standard is less stringent than the standard applicable under the Eighth 5 Amendment). 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de 7 novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s objections, the 8 Court finds the Findings and Recommendations to be supported by the record and by proper analysis. 9 Based on the foregoing, it is HEREBY ORDERED that: 10 1. The Findings and Recommendation filed on September 19, 2019, is adopted in full; and 11 2. The instant action is dismissed for failure to state a cognizable claim for relief. 12 13 IT IS SO ORDERED. 14 Dated: October 21, 2019 /s/ Lawrence J. O’Neill _____ 15 UNITED STATES CHIEF DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28