Green v. Ferguson, et al.
Filing
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ORDER adopting 11 , 13 FINDINGS AND RECOMMENDATIONS signed by Chief Judge Anthony W. Ishii on 9/20/2011. (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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VENCIL C. GREEN,
Case No. 1:10-cv-01768 AWI JLT (PC)
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Plaintiff,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
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vs.
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(Docs. 3, 11 & 13)
DR. LARRY N. FERGUSON, et al.,
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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. The matter was referred to a United States Magistrate Judge pursuant to
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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On August 8, 2011, the Magistrate Judge screened Plaintiff’s original complaint and found that
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it states cognizable claims only with respect to certain defendants. (Doc. 10.) The Magistrate Judge
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therefore ordered Plaintiff to either file an amended complaint attempting to cure the deficiencies in his
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incognizable claims or notify the Court that he wished to proceed only on his cognizable claims. (Id.)
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In response, Plaintiff timely notified the Court on August 12, 2011 that he wished to proceed only on
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the claims found cognizable by the Court. (Doc. 12.) Accordingly, on August 17, 2011, the Magistrate
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Judge issued findings and recommendations dismissing Plaintiff’s incognizable claims. (Doc. 13.)
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In addition, on August 8, 2011, the Magistrate Judge issued findings and recommendations
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recommending that Plaintiff’s motion for a preliminary injunction be denied. (Doc. 11.) The Magistrate
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Judge explained in this regard that Plaintiff has not met his burden of proving that preliminary relief is
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warranted and that Plaintiff appears to be precluded from injunctive relief in this action because he is
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a class member in Coleman v. Schwarzenegger, 2:90-cv-0520 LKK JFM (E.D. Cal.). See McNeil v.
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Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991) (class members must bring “claims for equitable relief
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through the class representative until the class action is over or the consent decree is modified.”).
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Both findings and recommendations contained notice to Plaintiff that any objections to the
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findings and recommendations were to be filed within fourteen days of being served with the findings
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and recommendations. As of the date of this order, Plaintiff has not filed any objections.
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The Court has conducted a de novo review of this case in accordance with 28 U.S.C. §
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636(b)(1)(C) and Local Rule 304. Having carefully reviewed the entire file, the Court finds both
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findings and recommendations to be supported by the record and proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The findings and recommendations issued August 8, 2011 are ADOPTED in full;
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2.
Plaintiff’s September 27, 2010 motion for a preliminary injunction (Doc. 3) is DENIED;
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3.
The findings and recommendations issued August 17, 2011 are ADOPTED in full;
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4.
Plaintiff’s Eighth Amendment inadequate medical care claims against Defendants
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Obaiza, Walker, and Wilson are DISMISSED for failure to state a claim;
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5.
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Plaintiff’s First Amendment access to the courts claim against Defendant Ferguson is
DISMISSED for failure to state a claim;
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6.
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Plaintiff’s requests for injunctive relief on his Eighth Amendment inadequate medical
care claims are DISMISSED;
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7.
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Plaintiff’s requests for monetary damages on his official capacity claims are
DISMISSED; and
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8.
This action shall proceed on the following claims: (1) inadequate medical care in
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violation of the Eighth Amendment against Defendants Ferguson and Lackovic; and (2)
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retaliation in violation of the First Amendment against Defendants Ferguson and
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Lackovic.
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IT IS SO ORDERED.
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Dated:
ciem0h
September 20, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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