Prophet v. Clark et al

Filing 26

ORDER ADOPTING the FINDINGS AND RECOMMENDATIONS IN PART 23 ; ORDER GRANTING Plaintiff's Motion for Leave to Amend 24 ; ORDER DIRECTING Clerk to File Fourth Amended Complaint; ORDER for This Action to Proceed on the Fourth Amended Complaint, Only Against Defendant Queen For Excessive Force, and DISMISSING All Other Claims and Defendants for Failure to State a Claim, signed by Chief Judge Anthony W. Ishii on 12/16/10. (Hellings, J)

(PC) Prophet v. Clark et al

Doc. 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 _____________________________/ Joseph Danny Prophet ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. On October 15, 2010, findings and recommendations were entered, recommending that this action be dismissed based on Plaintiff's failure to state a claim upon which relief may be granted under § 1983. (Doc. 23.) On November 12, 2010, in lieu of filing objections to the findings 1 vs. WARDEN CLARK, et al., JOSEPH DANNY PROPHET, Plaintiff, 1:07-cv-01785-AWI-GSA-PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART (Doc. 23.) ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND (Doc. 24.) ORDER DIRECTING CLERK TO FILE FOURTH AMENDED COMPLAINT (Doc. 25.) ORDER FOR THIS ACTION TO PROCEED ON THE FOURTH AMENDED COMPLAINT, ONLY AGAINST DEFENDANT QUEEN FOR EXCESSIVE FORCE, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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and recommendations, Plaintiff filed a motion for leave to amend the complaint and lodged a proposed Fourth Amended Complaint. (Docs. 24, 25.) In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and proper analysis. The Court has reviewed the proposed Fourth Amended Complaint in light of Plaintiff's motion for leave to amend. Plaintiff names only two defendants, Warden Clark and Correctional Officer Queen, along with unidentified Doe defendants. (Doc. 25 at 2 ¶¶4-6.) With regard to the Doe defendants, the Magistrate Judge found in the findings and recommendations that Plaintiff failed to make any specific factual allegation in the Third Amended Complaint as to any Doe defendant and the Doe defendants should therefore be dismissed, without leave to amend. (Doc. 23 at 11 ¶L.) Plaintiff has not cured this deficiency in the proposed Fourth Amended Complaint. With regard to Plaintiff's claim of inadequate medical care, Plaintiff fails to allege any facts showing deliberate indifference by defendants Queen or Clark, or by Dr. Perry who examined Plaintiff after his alleged injuries. (Doc. 25 at ¶¶10-14.) With regard to Plaintiff's claim that Warden Clark's policy requiring disabled inmates to "get down and lay on their stomach" during riot control was a cause of his injuries, Plaintiff has alleged no facts about the nature of his disability or how implementation of the policy plausibly caused injury to his knees. Nor has Plaintiff linked an act by any defendant to his allegation that he spent two to three hours "down," exacerbating his knee injury. At most, Plaintiff states a cognizable claim against defendant Queen for excessive force, based on the allegation that Queen pulled his hands behind his back and handcuffed them in such a way that it caused severe pain in Plaintiff's shoulders, resulting in the need for surgery after x-rays revealed damage to his shoulders. (Doc. 25 at 3 ¶¶9-11.) Plaintiff will be allowed to proceed only on the excessive force claim against defendant Queen. Accordingly, THE COURT HEREBY ORDERS that: 1. The Findings and Recommendations issued by the Magistrate Judge on October 15, 2010, are adopted in part; 2

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2.

Plaintiff's motion for leave to amend the complaint, filed on November 12, 2010, is GRANTED;

3.

The Clerk is DIRECTED to file the Fourth Amended Complaint which was lodged on November 12, 2010;

4.

This action now proceeds on Plaintiff's Fourth Amended Complaint only against defendant Correctional Officer Queen on Plaintiff's claim for excessive force under the Eighth Amendment. All other claims and defendants are dismissed from this action based on Plaintiff's failure to state a claim; and

5.

This action is referred back to the Magistrate Judge for further proceedings including service of process.

IT IS SO ORDERED. December 16, 2010 CHIEF UNITED STATES DISTRICT JUDGE

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