Smith v. Allison et al

Filing 26

ORDER ADOPTING 25 Findings and Recommendations to Dismiss Certain Claims, signed by District Judge Lawrence J. O'Neill on 7/30/2013. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,

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Plaintiff,

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v.

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D. GOSS, et al.

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Defendants.

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Case No.: 1:10-cv-01814 - LJO - JLT (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DISMISS CERTAIN
CLAIMS
(Doc. 25)

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Plaintiff Lawrence Christopher Smith (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis pursuant to 42 U.S.C. § 1983. On July 5, 2013, the Magistrate Judge found that

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Plaintiff stated cognizable First Amendment claims of retaliation against Lt. Goss and Officer Langler

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and cognizable Eighth Amendment claims against PA Byers and Lt. Gallagher. (Doc. 25 at 14). In

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addition, the Magistrate Judge recommended dismissal of certain claims. Id. at 15. While the Court

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advised Plaintiff that he could file his objections to the Findings and Recommendations, if any, within

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14 days, (Doc. 25 at 15), he failed to do so.

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On July 5, 2013, the Magistrate Judge recommended dismissal of Plaintiff’s supervisory

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liability claims against Dr. Beregovskaya and Dr. Enemoh and his First Amendment claims of denial

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of access to the courts against Officer Langler, Officer Anderson, and Defendant Doe. (Doc. 25 at 9-

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10, 15). The Magistrate Judge also recommended dismissal of Plaintiff’s procedural due process

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claim against Lt. Goss and Lt. Gallagher and dismissal of his Eighth Amendment claims against Sgt.
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Soltero, Officer Castro. Id. at 15. Specifically, Dr. Beregovskaya and Dr. Enemoh merely supervised

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Plaintiff’s medical treatment by reviewing Plaintiff’s inmate grievance. Id. at 6.

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With regard to Plaintiff’s First Amendment claim of denial of access to the courts, the

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Magistrate Judge determined that Plaintiff failed to demonstrate that Officer Langler, Officer

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Anderson or Defendant Doe harmed him. (Doc. 25 at 9-10). Similarly, in reference to his procedural

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due process claim against Lt. Goss and Lt. Gallagher, Plaintiff failed to plead loss of a liberty interest.

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Id. at 12. Finally, the Magistrate Judge ascertained that Plaintiff’s Eighth Amendment claim for

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excessive use of force against Sgt. Soltero and Officer Castro was a “buckshot complaint” because he

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raised this claim for the first time in his second amended complaint. Id. at 14.

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Therefore, in accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Britt v. Simi

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Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), the Court has conducted a de novo

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review of the case. Having carefully reviewed the entire file, the Court finds that the Magistrate

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Judge’s Findings and Recommendations (Doc. 25) are supported by the record and by proper analysis.

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Accordingly, the Court HEREBY ORDERS that:

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1. The Findings and Recommendations (Doc. 25) are ADOPTED IN FULL;

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2. Plaintiff’s supervisory liability claims against Dr. Beregovskaya and Dr. Enemoh are

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DISMISSED without leave to amend;
3. Plaintiff’s First Amendment claim of denial of access to the courts against Officer Langler,
Officer Anderson, and Defendant Doe are DISMISSED without leave to amend;
4. Plaintiff’s procedural due process claim against Lt. Goss and Lt. Gallagher are
DISMISSED without leave to amend; and
5. Plaintiff’s Eighth Amendment claims against Sgt. Soltero and Officer Castro are
DISMISSED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 30, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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