Full title: CARLOS ESPINO, Plaintiff, v. WALGREEN CO., et al., Defendants.
Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Date published: Mar 11, 2016
Facts
The plaintiff filed his original complaint on February 24, 2015, alleging that Walgreens discriminated against him based on race and disability by refusing to provide him with certain medications. ECF No. 1. The court dismissed the plaintiff’s complaint on May 21, 2015, after a hearing on Walgreen’s first motion to dismiss. ECF Nos. 8, 14. On June 11, 2015, the plaintiff filed a first amended complaint (FAC), which included allegations similar to those in his original complaint. ECF No. 15. On June 25, 2015, Walgreen moved to dismiss the plaintiff’s FAC. ECF No. 16. On September 21, 2015, following a hearing, the court issued findings recommending that Walgreen’s motion be granted without leave to amend. ECF No. 22. On November 12, 2015, the presiding district judge adopted the findings and recommendations in part, dismissing the plaintiff’s FAC with leave to amend. ECF No. 26.
On November 30, 2015, the plaintiff filed his second amended complaint (SAC). The SAC asserts claims under 42 U.S.C. §§ 1981, 1983, 1985 and the Racketeer Influenced and Corrupt Organizations Act (RICO) not only against Walgreen, but also against Judge Webber, Stockton MRI, Liberty Mutual, and Dr. Morris Senegor. ECF No. 27. The SAC is primarily concerned with an alleged conspiracy between defendants to kill the plaintiff, both by administering harmful medical treatment and by withholding needed medications.
On December 21, 2015, Walgreen filed a motion to dismiss the SAC. ECF No. 29. On January 8, 2016, Judge Webber filed both a motion to dismiss and a motion to declare the plaintiff a vexatious litigant, along with a request for judicial notice. ECF Nos. 31-33. On February 8, 2016, both Stockton MRI and Liberty Mutual filed motions to dismiss. ECF Nos. 40, 42. The plaintiff has opposed all pending motions. Liberty Mutual’s motion to dismiss has been taken under submission without hearing. ECF No. 50.
Issue
Decision
In sum, the court finds that those claims not previously presented in the plaintiff’s FAC should be dismissed because plaintiff was not given leave to add new claims or defendants. In addition, claims against Judge Webber are barred by the Eleventh Amendment and the doctrine of judicial immunity. Plaintiff’s remaining claims against Stockton MRI, Dr. Senegor, Walgreen, and Liberty Mutual should be dismissed because the plaintiff has alleged facts sufficient to state a claim under any of the statutes he cites. Because the plaintiff has already amended twice and there is no reason to believe that further amendment would save his claims, the court recommends that the SAC be dismissed without leave to amend.
As a separate matter, the court finds that Judge Webber has not shown a pre-filing order limiting the plaintiff’s ability to file future claims in this court is appropriate at this time.
In light of the foregoing, THE COURT HERBY RECOMMENDS that:
1. The pending motions to dismiss, ECF Nos. 29, 31, 40, and 42, be GRANTED without leave to amend;
2. Plaintiff’s claims against Dr. Senegor be dismissed sua sponte; and
3. Judge Webber’s motion to declare the plaintiff a vexatious litigant, ECF No. 32, be DENIED.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order.