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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
MICHAEL D. HARRISON,
12
13
14
15
16
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
17
18
Plaintiff is a state prisoner proceeding pro se in this civil rights action brought
19
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On July 30, 2013, the Court screened
20
Plaintiff’s Eighth Amended Complaint and found that it stated a cognizable claim against
21
Defendants Jones, Moore, Burns, Dava, Kim, Edmonds, Galvan, C. Gonzalez, M.
22
Gonzalez, Johnson, O’Neal, Parsons, Raygoza, Roth, Tumayo, Urbano, Vicente, Zakari,
23
Bastianon, Campos, Casio, Cisneros, and Coronado for violation of Plaintiff’s rights
24
under the Eighth Amendment. (ECF No. 160.) On August 26, 2015, summary judgment
25
was granted in favor of Defendants Rabaino-Burns, Kim, and Dava. (ECF No. 266.)
26
Further proceedings in this action have been hampered by difficulties in serving
27
some of the named Defendants. Relevant to the instant motion, re-service on
28
1
Defendants Zakari, Edmonds, and Raygoza was returned unexecuted on more than one
2
occasion. (ECF Nos. 177, 179, 193, 194, 267, 279, 283.) Accordingly, they were
3
dismissed. (ECF No. 284.) Defendants Bastianon and Johnson recently appeared in the
4
action. (ECF Nos. 269, 275.) As a result of their recent appearance, a new scheduling
5
order issued, setting August 29, 2016 as the dispositive motion deadline. (ECF No. 272.)
6
Plaintiff does not wish to delay the instant litigation further and instead desires to
7
proceed to trial. Accordingly, he moves to dismiss Defendants Zakari, Raygoza,
8
Edmonds, Johnson and Bastianon. He asks that the case be set for settlement and/or
9
trial. (ECF No. 285.) Defendants filed a statement of non-opposition and agree that,
10
should these Defendants be dismissed, a new scheduling order is appropriate.
11
The Court will recommend that Plaintiff’s motion be granted in part and denied in
12
part. Because Defendants Zakari, Raygoza, and Edmonds already were dismissed, the
13
motion is moot as to them. However, the Court will recommend that Defendants Johnson
14
and Bastianon be dismissed pursuant to Federal Rule of Civil Procedure 41(a)(2).
15
16
17
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;
18
2. Defendants Johnson and Bastianon be dismissed; and
19
3. The matter be referred back to the undersigned for the issuance of orders
20
scheduling a settlement conference, pretrial matters, and trial.
21
The findings and recommendation are submitted to the United States District
22
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
23
fourteen (14) days after being served with the findings and recommendation, any party
24
may file written objections with the Court and serve a copy on all parties. Such a
25
document should be captioned “Objections to Magistrate Judge’s Findings and
26
Recommendation.” Any reply to the objections shall be served and filed within fourteen
27
(14) days after service of the objections. The parties are advised that failure to file
28
objections within the specified time may result in the waiver of rights on appeal.
2
1
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
2
F.2d 1391, 1394 (9th Cir. 1991)).
3
4
5
IT IS SO ORDERED.
Dated:
February 22, 2016
/s/
6
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?