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United States District Court

Eastern District of California 

Jesse Simkins,

Plaintiff, No. Civ. S 04-1433 DFL PAN P

vs. Findings and Recommendations

Foothill Orthopedic Medical 

Clinic, et al.,

Defendants.

-oOoPlaintiff filed this civil rights action as a state prisoner

without counsel before he was released from custody. 

In his July 21, 2004, complaint plaintiff challenges the

sufficiency of medical care for plaintiff’s injured hand provided

at Jamestown State Prison, Foothill Orthopedic Medical Clinic and

Tuolomne General Hospital. He also claims defendant Tennison

violated plaintiff’s constitutional rights by rejecting his

administrative grievances as untimely. 

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Defendant Tuolumne County (sued as Tuolumne General

Hospital) (hereafter Tuolumne) moved July 13, 2005, to dismiss

the complaint, arguing that plaintiff fails to state a claim

against it under the Eighth Amendment and fails sufficiently to

allege its participation in providing negligent medical care that

caused plaintiff harm. Plaintiff did not oppose.

August 19, 2005, defendant Tennison moved to dismiss on the

ground that prisoners have no constitutional right to pursue a

grievance. Plaintiff did not oppose.

In addressing a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must accept plaintiff’s allegations as true,

read the complaint most favorably to plaintiff, give plaintiff

the benefit of every reasonable inference that appears from the

pleading and argument of the case and dismiss the complaint only

if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations. 

Wheeldin v. Wheeler, 373 U.S. 647, 658 (1963); Retail Clerks

International Association, Local 1625, AFL-CIO v. Schermerhorn,

373 U.S. 746, 754 n.6 (1963); Hishon v. King & Spalding, 467 U.S.

69, 73 (1984). 

Defendants’ arguments on their face are meritorious and the

court treats plaintiff’s failure to oppose them as a concession

the orders sought should be made.

Accordingly, the court hereby recommends that:

1. Tuolumne’s July 13, 2005, motion to dismiss be granted

and claims against it be dismissed for failure to state a claim. 

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2. Tennison’s August 19, 2005, motion to dismiss be granted

and claims against her be dismissed for failure to state a claim. 

 Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: January 24, 2006. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-01433-DFL-PAN Document 35 Filed 01/25/06 Page 3 of 3