Harrison v. Adams, et al

Filing 289

FINDINGS and RECOMMENDATIONS to Grant in Part and Deny in Part 285 Plaintiff's Motion to Dismiss; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 2/22/2016. Referred to Judge Anthony W. Ishii. Objections to F&R due by 3/10/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL D. HARRISON,

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Plaintiff,
v.
D. ADAMS, et al.,
Defendants.

CASE NO. 1:08-cv-1065-AWI-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO GRANT IN PART AND DENY IN PART
PLAINTIFF’S MOTION TO DISMISS
(ECF No. 285)
FOURTEEN
DEADLINE

(14)

DAY

OBJECTION

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Plaintiff is a state prisoner proceeding pro se in this civil rights action brought

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pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On July 30, 2013, the Court screened

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Plaintiff’s Eighth Amended Complaint and found that it stated a cognizable claim against

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Defendants Jones, Moore, Burns, Dava, Kim, Edmonds, Galvan, C. Gonzalez, M.

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Gonzalez, Johnson, O’Neal, Parsons, Raygoza, Roth, Tumayo, Urbano, Vicente, Zakari,

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Bastianon, Campos, Casio, Cisneros, and Coronado for violation of Plaintiff’s rights

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under the Eighth Amendment. (ECF No. 160.) On August 26, 2015, summary judgment

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was granted in favor of Defendants Rabaino-Burns, Kim, and Dava. (ECF No. 266.)

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Further proceedings in this action have been hampered by difficulties in serving

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some of the named Defendants. Relevant to the instant motion, re-service on

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Defendants Zakari, Edmonds, and Raygoza was returned unexecuted on more than one

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occasion. (ECF Nos. 177, 179, 193, 194, 267, 279, 283.) Accordingly, they were

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dismissed. (ECF No. 284.) Defendants Bastianon and Johnson recently appeared in the

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action. (ECF Nos. 269, 275.) As a result of their recent appearance, a new scheduling

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order issued, setting August 29, 2016 as the dispositive motion deadline. (ECF No. 272.)

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Plaintiff does not wish to delay the instant litigation further and instead desires to

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proceed to trial. Accordingly, he moves to dismiss Defendants Zakari, Raygoza,

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Edmonds, Johnson and Bastianon. He asks that the case be set for settlement and/or

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trial. (ECF No. 285.) Defendants filed a statement of non-opposition and agree that,

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should these Defendants be dismissed, a new scheduling order is appropriate.

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The Court will recommend that Plaintiff’s motion be granted in part and denied in

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part. Because Defendants Zakari, Raygoza, and Edmonds already were dismissed, the

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motion is moot as to them. However, the Court will recommend that Defendants Johnson

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and Bastianon be dismissed pursuant to Federal Rule of Civil Procedure 41(a)(2).

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Based on the foregoing, it is HEREBY RECOMMENDED that:
1. Plaintiff’s motion to dismiss (ECF No. 285) be granted in part and denied in
part;

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2. Defendants Johnson and Bastianon be dismissed; and

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3. The matter be referred back to the undersigned for the issuance of orders

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scheduling a settlement conference, pretrial matters, and trial.

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The findings and recommendation are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with the findings and recommendation, any party

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may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.
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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

February 22, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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