Siordia v. Cate, et al.

Filing 11

FINDINGS and RECOMMENDATION for Dismissal of Certain Claims and Defendants, signed by Magistrate Judge Michael J. Seng on 11/2/11. Referred to Judge O'Neill. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT SIORDIA,

CASE NO.

1:11-cv-00742-LJO-MJS (PC)

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Plaintiff,

FINDINGS AND RECOMMENDATION FOR
DISMISSAL OF CERTAIN CLAIMS AND
DEFENDANTS

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v.
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MATHEW CATE, et al.,

(ECF Nos. 9 and 10)

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Defendants.
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/
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I.

INTRODUCTION

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On May 9, 2011, Plaintiff Robert Siordia, a state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF

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No. 1.) On October 3, 2011, after reviewing Plaintiff’s Complaint, the Court ordered

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Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed

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only on his Eighth Amendment claims against Defendants Cate and Yates. (Order, ECF

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No. 9.) Plaintiff has since notified the Court of his willingness to forgo an amended

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complaint and proceed with his cognizable Eighth Amendment claims. (Notice, ECF No.

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10.) Accordingly, Plaintiff’s claims against Defendants Igbinosa and Does one through five

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should now be dismissed.

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II.

ANALYSIS

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915(A)(a). The Court must dismiss a complaint or portion thereon if the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915(A)(b)(1),(2).

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The Court reviewed Plaintiff’s Complaint pursuant to this statute and issued a

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Screening Order on October 3, 2011. (Order, ECF No. 9.) In that Order, the Court found

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that the Complaint stated a cognizable Eighth Amendment claim against Defendants Cate

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and Yates based on the allegations that the two were aware of an increased risk of Valley

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Fever infection and exhibited deliberate indifference by failing to adopt any measure to

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mitigate the increased risk. (Id. at 6.) The Court found no other cognizable claims.

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Plaintiff failed to state a cognizable claim for inhumane conditions of confinement under

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the Eighth Amendment against Defendant Igbinosa because Plaintiff did not explain how

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Igbinosa’s policy regarding surgery masks exhibited deliberate indifference. (Id. at 7.)

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Plaintiff failed to state a cognizable claim for inhumane conditions of confinement under

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the Eighth Amendment against Does # 1 and # 2 because Plaintiff did not allege that either

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Defendant was aware of the serious medical need. (Id.) Plaintiff failed to state a

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cognizable claim for inadequate medical care under the Eighth Amendment against Does

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# 3, # 4, and # 5 because Plaintiff did not allege that the Defendants were capable of

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expediting his treatment or that any harm resulted from the delay. (Id. at 8.)

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The Court gave Plaintiff the option to proceed only against Defendants Cate and

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Yates on his Eighth Amendment claim or to file an amended complaint. Plaintiff has

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notified the Court that he wishes to proceed only on his Eighth Amendment claim against

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Defendants Cate and Yates. (Notice, ECF No. 10.) Accordingly, Plaintiff’s other claims

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and all other Defendants should now be dismissed.

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III.

CONCLUSION

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

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Plaintiff be permitted to proceed on his Eighth Amendment claim that
Defendants Cate and Yates were deliberately indifferent to Plaintiff’s serious
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medical need; and

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2.

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All of Plaintiff’s remaining claims and the remaining Defendants be
DISMISSED without prejudice.

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These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(l).

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Recommendations, the parties may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”

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The parties are advised that failure to file objections within the specified time may waive

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the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

Within twenty (20) days after being served with these Findings and

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IT IS SO ORDERED.

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Dated:
ci4d6

November 2, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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