Plata v. Woodford et al

Filing 40

FINDINGS and RECOMMENDATIONS recommending that this Action Proceed Only Against Defendants Watson, Corona, and John/Jane Doe #6, On Plaintiff's Claims for Retaliation and Failure to Protect, and All Other Claims and Defendants be Dismissed re 19 First Amended Complaint, signed by Magistrate Judge Gary S. Austin on 10/15/2010. Referred to Judge O'Neill. Objections to F&R due by 11/18/2010. (Jessen, A)

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(PC) Plata v. Woodford et al Doc. 40 1 2 3 4 5 6 7 8 9 10 11 12 13 Defendants. 14 / 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Marcial Plata ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds on the First Amended Complaint filed by Plaintiff on December 10, 2008. (Doc. 19.) The Court screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915A and found that it states cognizable claims for relief under § 1983 against defendants Correctional Officer ("C/O") Watson, C/O Corona, and John/Jane Doe #6 for two instances of retaliation -- on October 12, 2003 and December 19, 2003 ­ in violation of the First Amendment, and for failure to protect Plaintiff, in violation of the Eighth Amendment. (Doc. 21.) Plaintiff filed the Second Amended Complaint on April 24, 2009. (Doc. 26.) On June 4, 2010, the court dismissed the Second Amended Complaint for failure to state a claim and issued an order requiring Plaintiff to either file a Third Amended Complaint or notify the court of his willingness to proceed on the First Amended Complaint with the claims found cognizable by the court. (Doc. 32.) On October 4, 2010, Plaintiff filed written notice to the court that he is willing to proceed on the First Amended Complaint with the claims found cognizable by the court. (Doc. 38.) 1 OBJECTIONS, IF ANY, DUE IN 30 DAYS WOODFORD, et al., vs. MARCIAL PLATA, Plaintiff, 1:06-cv-01023-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS WATSON, CORONA, AND JOHN/JANE DOE #6, ON PLAINTIFF'S CLAIMS FOR RETALIATION AND FAILURE TO PROTECT, AND ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 6i0kij 28 Based on the foregoing, it is HEREBY RECOMMENDED that: 1. This action proceed with Plaintiff's First Amended Complaint, filed on December 10, 2008, only against defendants Correctional Officer ("C/O") D. Watson, C/O E. Corona, and John/Jane Doe #6 for two instances of retaliation -- on October 12, 2003 and December 19, 2003 ­ in violation of the First Amendment, and for failure to protect Plaintiff, in violation of the Eighth Amendment; 2. 3. All remaining claims and defendants be dismissed from this action; Plaintiff's due process claims, claims for an inadequate inmate appeals process, supervisory liability claims, and claims for failure to properly train and supervise be dismissed for failure to state a claim upon which relief may be granted under § 1983; and 4. Defendants California Department of Corrections Director Jeanne S. Woodford, PVSP Warden James A. Yates, Chief Deputy Warden A. Malfi, Associate Warden B. J. Hill, Associate Warden W. J. Juarez, Captain V. J. Quinn-Robicheaux, Lieutenant K. R. Nash, Lieutenant V. Ramirez, Lieutenant J. C. Smith, Sergeant B. Cramer, Sergeant B. Torres, C/O R. Juarez, C/O J. Duty, C/O J. Lopez, C/O Silva, C/O Pasillas, C/O Guerra, C/O Walker, C/O Espino, C/O D. Gonzales, C/O K. Session, C/O P. Sanchez, John/Jane Does #1-5, and John/Jane Does #7-35 be dismissed based on Plaintiff's failure to state any claims upon which relief may be granted against them under § 1983. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. Dated: October 15, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 2

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