Johnson v. Cavagnaro et al

Filing 22

ORDER Adopting Findings and Recommendations 17 ; ORDER Dismissing Conditions of Confinement Claim, signed by Chief Judge Anthony W. Ishii on 11/13/2010. (Verduzco, M)

(PC) Johnson v. Cavagnaro et al

Doc. 22

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT

DERRICK LANE JOHNSON, Plaintiff, v. S. CAVAGNARO, et al., Defendants. /

CASE NO. 1:09-cv-00742-AWI-SKO PC OR DER REGARDING RECOMMENDATIONS FINDINGS AND OF

ORDER DISMISSING CONDITIONS CONFINEMENT CLAIM (Doc. 17)

Plaintiff Derrick Lane Johnson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis 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 July 20, 2010, the Magistrate Judge ordered that this action would proceed on Plaintiff's Eighth Amendment claim against Defendants for their alleged use or mechanical restraints, plastic restraints, and duct tape for three days, which caused Plaintiff pain and suffering. The Magistrate Judge issued a Findings and Recommendations that recommended Plaintiff's Eighth Amendment claim based on the conditions of the holding cell, including the lack of water, toilet facilities, and blankets, be dismissed from this action for failing to state a claim upon which relief can be granted. (Doc. #17.) The Findings and Recommendations were served on Plaintiff and contained notice to Plaintiff that any objections to the Findings and Recommendations were to be filed within thirty (30) days of the date on which the Findings and Recommendations were served. Plaintiff has not filed objections to the Findings and Recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 305, this Court has conducted a de novo review of this case. A review of the complaint indicates that the factual basis of Plaintiff's Eighth Amendment claim is Defendants' alleged use of mechanical restraints, plastic restraints, and duct tape for three days. On this basis, the court agrees1 that this action should proceed on this Eighth Amendment claim and not on any potential claims arising from the holding cell's conditions. Accordingly, the Court HEREBY ORDERS that: 1. 2. The July 20, 2010 Findings and Recommendations' conclusion are ADOPTED; Plaintiff's Eighth Amendment claims based on the conditions of the holding cell are DISMISSED; and 3. This action shall proceed on Plaintiff's claims against Cavagnaro, Lane, and Does 16 for excessive force in violation of the Eighth Amendment for their use of mechanical restraints, plastic restraints, and duct tape on Plaintiff for three days. IT IS SO ORDERED. Dated: 0m8i78 November 13, 2010 CHIEF UNITED STATES DISTRICT JUDGE

The court declines to adopt the Findings and Recommendations to the extent the Findings and R e c o m m e n d a tio n s imply that an actual serious injury from unconstitutional prison conditions is necessary for an E ig h th Amendment claim.

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