West v. Federal Bureau of Prisons et al

Filing 59

ORDER ADOPTING 57 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Defendants and Denial of 51 , 52 Plaintiff's Discovery Motions for Dismissed Defendant, signed by District Judge Lawrence J. O'Neill on 4/19/2012. (Jessen, A)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
GERALD A. WEST,

CASE NO: 1:09-CV-01277-LJO-GBC (PC)

9
Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN DEFENDANTS AND DENIAL OF
PLAINTIFF’S DISCOVERY MOTIONS FOR
DISMISSED DEFENDANT

10
v.
11
FEDERAL BUREAU OF PRISONS, et al.,
12
Defendants.
13

Docs. 51, 52, 57
/

14
15

On July 22, 2009, Plaintiff Gerald A. West, a federal prisoner proceeding pro se and in forma

16

pauperis, filed a complaint against Defendants employed by the United States Penitentiary in

17

Atwater, California (“USP Atwater”),1 pursuant to Bivens v. Six Unknown Named Agents of Federal

18

Bureau of Narcotics, 403 U.S. 388 (1971). Doc. 1. On August 27, 2010, Plaintiff filed a third

19

amended complaint, naming only Doe Defendants. Doc. 25. On February 15, 2011, the Court

20

dismissed certain claims and directed the action to proceed against Doe Defendants for Eighth

21

Amendment failure to protect. Doc. 28. On May 3, 2011, the Court granted Plaintiff’s motion to

22

conduct limited discovery, for the sole purpose of identifying Doe Defendants, and ordered Plaintiff

23

to identify Doe Defendants within 120 days. Doc. 33. On July 26, 2011, the Court directed service

24

of a subpoena to the warden of USP Atwater, for the limited discovery of identifying Doe

25

Defendants. Doc. 45. On August 25, 2011, the Bureau of Prisons (“BOP”) submitted a response to

26

Plaintiff’s subpoena. Doc. 49. On March 7, 2012, Plaintiff filed his fourth amended complaint,

27
28

1

Plaintiff is currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania.
Page 1 of 2

1

identifying two of the three Doe Defendants. Doc. 56. The matter was referred to a United States

2

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

3

On March 15, 2012, the Magistrate Judge issued Findings and Recommendations,

4

recommending dismissal of certain defendants and denial of Plaintiff’s discovery motions for

5

dismissed Doe defendant. Doc. 57. On April 2, 2012, Plaintiff filed Objections. Doc. 58.

6

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de

7

novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and

8

Recommendations to be supported by the record and by proper analysis.

9

Accordingly, IT IS HEREBY ORDERED that:

10

1.

This action proceed on Plaintiff’s fourth amended complaint, filed March 7, 2012,

11

against Defendant McNease, for failure to protect in violation of the Eighth

12

Amendment;

13

2.

Plaintiff’s claim against Doe Defendant 3 is DISMISSED, without prejudice, for

14

failure to serve Doe Defendant 3 within the 120-day period prescribed by Rule 4(m)

15

of the Federal Rules of Civil Procedure;

16

3.

Plaintiff’s motion for further discovery regarding Doe Defendant 3 is DENIED;

17

4.

Plaintiff’s motion for additional subpoena regarding Doe Defendant 3 is DENIED;

18

5.

Plaintiff’s claims against Defendants Zaragoza, Federal Bureau of Prisons, and the

19

United States are DISMISSED, with prejudice, for failure to state a claim upon which

20

relief may be granted under 42 U.S.C. § 1983; and

21

6.

22

This matter is referred back to the Magistrate Judge to initiate service of process
proceedings.

23
24
25

IT IS SO ORDERED.

26

Dated:
b9ed48

April 19, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

27
28
Page 2 of 2