Frazier v. Akano et al

Filing 24

ORDER VACATING (1) 21 Order Adopting Findings and Recommendations Dismissing Action With Prejudice for Failure to State a Claim, and (2) 22 Judgment Thereon; ORDER ADOPTING 18 Findings and Recommendations Dismissing Action With Prejudice for Failure to State a Claim; Dismissal to COunt as a Strike Pursuant to 28 U.S.C. 1915(g); Clerk to CLOSE CASE, signed by District Judge Lawrence J. O'Neill on 10/6/2013. CASE CLOSED (Strike). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RODNEI FRAZIER,

Case No. 1:10-cv-01656-LJO-MJS (PC)

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Plaintiff,

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v.
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ORDER VACATING (1) ORDER
ADOPTING FINDINGS AND
RECOMMENDATIONS DISMISSING
ACTION WITH PREJUDICE FOR
FAILURE TO STATE A CLAIM, and (2)
JUDGMENT THEREON

S. LOPEZ, et al.,
(ECF No. 21 & 22)

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Defendants.
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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS DISMISSING
ACTION WITH PREJUDICE FOR
FAILURE TO STATE A CLAIM

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(ECF No. 18)
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DISMISSAL TO COUNT AS A STRIKE
PURSUANT TO 28 U.S.C. § 1915(g)

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CLERK TO CLOSE CASE

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Plaintiff Rodnei Frazier is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action filed on September 3, 2010 pursuant to 42 U.S.C. § 1983. The
matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
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636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District

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of California.
On July 29, 2013, the Magistrate Judge issued findings and recommendations that

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the action be dismissed with prejudice for failure to state a claim with said dismissal to

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count as a strike pursuant to 28 U.S.C. § 1915(g). (ECF No. 18.) Any objection to the

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findings and recommendations was originally due by August 16, 2013. (Id.) However, the

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Magistrate granted Plaintiff’s request to extend to not later than September 23, 2013 the

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time to file objections. (ECF No. 20.) The September 23, 2013 deadline passed without

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Plaintiff filing objections or seeking further extension of time to do so. On September 27,

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2013, the undersigned adopted in full the findings and recommendations, (ECF No. 21),

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and entered judgment thereon (ECF No. 22). On September 30, 2013, Plaintiff filed

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objections to the findings and recommendations. (ECF No. 23.)
The order adopting findings and recommendations and judgment entered thereon

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shall be vacated so the Court can review Plaintiff’s objections.1
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has

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conducted a de novo review of this case. Having carefully reviewed the entire file, the Court

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finds the findings and recommendations to be supported by the record and by proper

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analysis.

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Plaintiff’s objections re-argue his claims, found deficient by the Magistrate, that

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Defendants ignored their medical and professional duty and a chief medical officer “teletype

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agreement” regarding Plaintiff’s medical evaluation and treatment at Kern Valley State

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Prison (KVSP); and retaliated through Plaintiff’s transfer to KVSP and denial of transfer

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from KVSP and related grievance process and in covering up the teletype agreement.

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However, it remains that claims of retaliation are unsupported by facts of retaliatory intent

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and are conclusory; in the absence of retaliation, Plaintiff has no right to be incarcerated at

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a particular correctional facility; Plaintiff has no right to his preferred medical treatment and

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has not demonstrated intentional delay or denial of medical care or medically inappropriate

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The Court finds Plain file an application to proceed in forma pauperis or pay the $400 filing fee tiff’s status as
a pro se prisoner to provide good cause for review of the untimely objections.

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treatment; and that Plaintiff has not demonstrated any serious risk arising from conditions

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at KVSP to which Defendants were intentionally non-responsive causing Plaintiff harm.

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Plaintiff also asserts inconsistencies between allegations in his pleading and the

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Magistrate’s findings and recommendations.2 However, the corrections Plaintiff asserts do

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not raise an issue of law or fact under the findings and recommendations.

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Accordingly, it is HEREBY ORDERED that:

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1.

The order adopting findings and recommendations and judgment entered
thereon (ECF Nos. 21 & 22) are VACATED;

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2.

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The Court ADOPTS the findings and recommendations filed on July 29, 2013
(ECF No. 18) in full;

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3.

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This action is DISMISSED WITH PREJUDICE for failure to state a claim, with

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said dismissal to count as a strike pursuant to 28 U.S.C. § 1915(g), Silva v. Di

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Vittorio 658 F.3d 1090 (9th Cir. 2011); and
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The Clerk of the Court is ordered to close the case.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

October 6, 2013

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Plaintiff asserts the Magistrate incorrectly states that Defendant Smith told Plaintiff of the teletype
agreement; that Defendant Akano MD was CMO of KVSP; and that Defendant Lopez denied the existence of
the teletype agreement. The findings and recommendations (ECF No. 18) are hereby corrected in these
regards.

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UNITED STATES DISTRICT JUDGE
DEAC _Signature- END:

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b9ed48bb

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