Ortega v. Yates et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that this 14 Action Proceed Only Against Defendant Dr. Duenas on Plaintiff's Eighth Amendment Claim, and all Other Claims and Defendants be Dismissed; Objections, if any, Due in 30 Days signed by Magistrate Judge Gary S. Austin on 10/3/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 11/7/2011. (Sant Agata, S)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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EDWARD ORTEGA,
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1:09-cv-01476-AWI-GSA-PC
Plaintiff,
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST DEFENDANT
DR. DUENAS ON PLAINTIFF’S EIGHTH
AMENDMENT CLAIM, AND ALL OTHER
CLAIMS AND DEFENDANTS BE
BE DISMISSED
vs.
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WARDEN JAMES A. YATES, et al.,
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Defendants.
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OBJECTIONS, IF ANY, DUE IN 30 DAYS
/
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Plaintiff Edward Ortega (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights
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action pursuant to 42 U.S.C. § 1983. The case now proceeds on the First Amended Complaint filed by
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Plaintiff on August 26, 2010. (Doc. 14.) The First Amended Complaint names Dr. Felix Igbinosa, Dr.
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Duenas, Nurse Kratts, and Nurse Adonis as defendants, and alleges claims for inadequate medical care
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in violation of the Eighth Amendment. Id.
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The Court screened Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915A and
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found that it states a cognizable claim for relief under section 1983 against Defendant Dr. Duenas, for
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providing inadequate medical care in violation of the Eighth Amendment. On September 16, 2011,
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Plaintiff was given leave to either file a Second Amended Complaint, or in the alternative, to notify the
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Court that he does not wish to file a Second Amended Complaint and instead is willing to proceed only
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on the claims identified by the Court as viable/cognizable in the Court’s order. (Doc. 20.)
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On
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September 29, 2011, Plaintiff filed written notice to the Court that he wishes to proceed only on the
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claims found cognizable by the Court. (Doc. 21.)
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
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This action proceed only against defendant Dr. Duenas, for inadequate medical care in
violation of the Eighth Amendment;
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2.
All remaining claims and defendants be dismissed from this action;
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3.
Plaintiff's claims against defendants Dr. Felix Igbinosa, Nurse Kratts, and Nurse Adonis
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be dismissed from this action based on Plaintiff's failure to state any claims upon which
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relief may be granted against them; and
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4.
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Plaintiff's Valley Fever claims be dismissed for failure to state a claim upon which relief
may be granted under section 1983.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days
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after being served with these Findings and Recommendations, any party may file written objections with
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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Replies to the objections shall be served and filed within ten (10) days after service
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of the objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636
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(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the
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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
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October 3, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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