Green v. Ferguson, et al.
Filing
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FINDINGS and RECOMMENDATIONS Recommending the Dismissal of Certain Claims and Defendants 10 , 12 , signed by Magistrate Judge Jennifer L. Thurston on 8/16/11. Referred to Judge Ishii. 14-Day Objection Deadline. (Gonzalez, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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VENCIL GREEN,
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Case No. 1:10-cv-01768 AWI JLT (PC)
Plaintiff,
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THE DISMISSAL OF
CERTAIN CLAIMS AND DEFENDANTS
vs.
DR. LARRY N. FERGUSON, et al.,
(Docs. 10 & 12)
Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action
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pursuant to 42 U.S.C. § 1983. On August 8, 2011, the Court screened Plaintiff’s complaint pursuant to
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28 U.S.C. § 1915A and found that it states the following cognizable claims: (1) inadequate medical care
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in violation of the Eighth Amendment against Defendants Ferguson and Lackovic; and (2) retaliation
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in violation of the First Amendment against Defendants Ferguson and Lackovic. (Doc. 10.) However,
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the Court also found that Plaintiff’s remaining allegations failed to state a cognizable claim. (Id.) In
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particular, Plaintiff’s allegations fell shy of stating (1) a cognizable access to the courts claim against
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Defendant Ferguson; and (2) cognizable inadequate medical care claims against Defendants Obaiza,
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Walker, and Wilson. (Id.) The Court also found that Plaintiff could not recover injunctive relief on his
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Eighth Amendment claims and could not recover damages on his official capacity claims. (Id.)
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Plaintiff was therefore afforded two options. First, Plaintiff was given the option of filing an
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amended complaint that cured the deficiencies identified by the Court in its screening order. Second,
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Plaintiff was given the option of filing notice with the Court indicating that he wished to proceed only
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on those claims found cognizable by the Court. On August 12, 2011, Plaintiff chose the second option
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and filed written notice with the Court indicating that he wished to proceed only on those claims found
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cognizable by the Court. (Doc. 12.)
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Accordingly, it is HEREBY RECOMMENDED that:
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1.
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Obaiza, Walker, and Wilson be DISMISSED for failure to state a claim;
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Plaintiff’s Eighth Amendment inadequate medical care claims against Defendants
Plaintiff’s First Amendment access to the courts claim against Defendant Ferguson be
DISMISSED for failure to state a claim;
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Plaintiff’s requests for injunctive relief on his Eighth Amendment inadequate medical
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care claims be DISMISSED as preempted by Coleman v. Schwarzenegger, No. 2:90-cv-
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00520 LKK JFM (E.D. Cal.);
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4.
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Plaintiff’s request for monetary damages on his official capacity claims be DISMISSED
as barred under the Eleventh Amendment; and
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This action be allowed to proceed on the following claims: (1) inadequate medical care
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in violation of the Eighth Amendment against Defendants Ferguson and Lackovic; and
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(2) retaliation in violation of the First Amendment against Defendants Ferguson and
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Lackovic.
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These findings and recommendations are submitted to the United States District Judge assigned
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to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Within fourteen (14) days after
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being served with these findings and recommendations, Plaintiff may file written objections with the
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Court. If Plaintiff chooses to file such a document, it should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated: August 16, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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