Smith v. Allison et al

Filing 52

ORDER on Plaintiff's 49 Objections to Order Adopting Findings and Recommendations signed by District Judge Lawrence J. O'Neill on 1/23/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,
Plaintiff,

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v.

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ALLISON, et al.,

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Defendants.

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Case No.: 1:10-cv-01814-LJO-JLT (PC)
ORDER ON PLAINTIFF'S OBJECTIONS TO
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
(Doc. 49)

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

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forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff timely submitted his

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Third Amended Complaint ("3rd AC"). (Doc. 31). The 3rd AC was previously screened and a

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findings and recommendation issued, to which Plaintiff filed objections. (Docs. 33, 35.) Upon receipt

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of Plaintiff's objections, the Court revisited the findings and recommendation, re-screened the 3rd AC,

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vacating the prior findings and recommendations and issuing a second findings and recommendations

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that Plaintiff should be allowed to proceed on the following cognizable claims: retaliation in violation

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of the First Amendment against Defendants Lt. Goss, Lt. Gallagher, and Officer Langler; deliberate

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indifference to his serious medical needs in violation of the Eighth Amendment against Defendants PA

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Byers and Officer Langler; and due process violations against Defendant Lt. Goss. (Doc. 42.) The

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second findings and recommendations were adopted in whole. (Doc. 47.)

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On January 16, 2014, Plaintiff filed objections to the order adopting the second findings and

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recommendations. (Doc. 49.) In his objections, Plaintiff notes two discrepancies in the order adopting

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the second findings and recommendations.

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First, Plaintiff notes that "Allison" is listed in the caption of the order adopting the second

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findings and recommendations, despite Plaintiff having removed "Allison" from his pleadings upon

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one of the initial screenings "long ago." (Doc. 49, p. 1.) Plaintiff is correct that there is no longer any

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defendant by the name "Allison" in this action. However, when Plaintiff filed this action, he listed

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"Allison" as the first Defendant in the action (see Doc. 1, p. 1), so the name of this case is "Smith v.

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Allison, et al." Further, it is an internal administrative function of this Court's docketing system that

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the individual named as the first defendant in a Plaintiff's first pleading is the name listed as the

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leading defendant in the caption of the case for all subsequent events up to the eve of trial. While

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"Allison" was terminated as a defendant in this action on September 10, 2013, the name "Allison" may

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show up in the caption as it was part of the original name of this case. If a date for trial is set, the

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names of all persons who are no longer defendants in an action will be removed from all captions on

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documents to be used in the trial.1

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Second, Plaintiff notes that the second findings and recommendations gave him thirty (30)

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days to file objections, rather than ten (10) days as noted in the order adopting. Plaintiff is correct that

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the second findings and recommendations gave him thirty (30) days to file objections. The order

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adopting contained a typographical error when it noted that Plaintiff had 10 days to file objections.

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However, this was nothing more than a typographical error and of no consequence as Plaintiff timely

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filed his objections which were considered in the order adopting. (See Doc. 47.)

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Accordingly, it is hereby ordered that Plaintiff's objection to the name "Allison" appearing in

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various captions and documents in this case is HEREBY OVERRULED and Plaintiff's objection to

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the notation in the order adopting the second findings and recommendations that he had only 10 days

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to file objections when he in fact had 30 days to do so is HEREBY SUSTAINED.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

January 23, 2014

UNITED STATES DISTRICT JUDGE

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In fact, if this case proceeds to trial, the name of the action will likely be changed to Smith v. Goss, et al., as
prematurely noted on the second findings and recommendations.

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