Burgess v. Raya, et al.

Filing 32

ORDER Adopting 29 FINDINGS AND RECOMMENDATION of Dismissal of Certain Claims signed by District Judge Lawrence J. O'Neill on 9/12/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DWAYNE L. BURGESS,

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Plaintiff,

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v.

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J. RAYA, et al.,

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Defendant.

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Case No.: 1:11-cv-00921 – LJO – JLT (PC)
ORDER ADOPTING THE FINDINGS AND
RECOMMENDATION OF DISMISSAL OF
CERTAIN CLAIMS
(Docs. 29)

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Plaintiff Dwayne L. Burgess (“Plaintiff”) is a state prisoner proceeding pro se with a civil

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rights action pursuant to 42 U.S.C. § 1983. (Doc. 29). On August 16, 2013, the Magistrate Judge

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issued a Finding and Recommendation dismissing certain claims. (Doc. 29). While the Court advised

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Plaintiff that he could file his objections to the Findings and Recommendations, if any, within 14 days,

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he has omitted to do so.

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First, The Magistrate Judge recommended dismissal of Plaintiff’s California assault claim,

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against Raya, Garcia, Polanco, and Fernandez, because Plaintiff failed to indicate that he believed

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himself to be in imminent danger at any time. (Doc. 29 at 6-7). Second, the Magistrate Judge

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considered that Plaintiff omitted any facts to suggest that Fernandez and Garcia possessed a retaliatory

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motive in acting against Plaintiff. Id. at 9.

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dismissal of Claim IV, retaliation in violation of the First Amendment as to Fernandez and Garcia. Id.

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at 8-9.

Thus, the Magistrate Judge correctly recommended

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Third, the Magistrate Judge noted that Plaintiff suffered from the serious medical conditions of

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asthma and bronchitis. (Doc. 29 at 10). As to Raya, Garcia, Polanco, and Fernandez, the Magistrate

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Judge noted that the use of pepper spray was not a per se violation of the Eighth Amendment and that

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there was no indication that these Defendants were aware of his medical condition. Id. Similarly, the

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Magistrate Judge considered that Robiana’s and Rodriguez’s alleged failure to schedule a single

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doctor’s appointment failed to demonstrate any deliberate indifference. Id. at 11. Thus, the Magistrate

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Judge properly recommended dismissal of Claims V and VI against Defendants Raya, Garcia,

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Polanco, Fernandez, Robiana, and Rodriguez for their failure to provide adequte medical care. Id. at 9-

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12.

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Fourth, the Magistrate Judge noted that Claim VII against Morales for violation of the

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Fourteenth Amendment due process clause was barred by Heck v. Humphrey, 512 U.S. 477 (1994).

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(Doc. 29 at 12-13). Namely, Plaintiff alleged that Morales denied Plaintiff his right to call witnesses

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at a disciplinary hearing that resulted in a loss of goodtime credits and privileges. Id. at 12. However,

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because Plaintiff failed to demonstrate that his disciplinary conviction was overturned, the Magistrate

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Judge properly recommended dismissal of the claim.

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Next, with regard to Claim VIII against Tarnoff for his interference with the processing of

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Plaintiff’s administrative claim, the Magistrate Judge noted that Plaintiff had no constitutional right to

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a grievance procedure. (Doc. 29 at 13). Given that Plaintiff’s sole complaint against Tarnoff was the

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handling of his administrative grievance, the Magistrate Judge correctly recommended dismissal of

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Claim VIII.

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Finally, with regard to Claim IX against Fernandez, Garcia, Morales, Robiana, Rodriguez and

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Tarnoff for their alleged conspiracy against Plaintiff, the Magistrate Judge noted that these Defendants

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displayed no conspiratorial intent to violate Plaintiff’s rights. (Doc. 29 at 13-14).

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Fernandez and Garcia merely acquiesced to Polanco’s and Ray’s use of the pepper spray. Id. at 14.

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Similarly, Morales acted alone against Plaintiff, and Robiana, Tarnoff, and Rodriguez committed no

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constitutional violation against Plaintiff whatsoever. Id.

Specifically,

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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 of dismissal of certain claims (Doc. 29) are supported by the

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record and by proper analysis.
ORDER

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Accordingly, the Court HEREBY ORDERS that:

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1. The Findings and Recommendations (Doc. 29) are ADOPTED IN FULL;

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2. Claim II – California assault against Defendants Raya, Garcia, Polanco, and Fernandez is
DISMISSED without leave to amend;

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3. Claim IV – First Amendment retaliation against Defendants Garcia and Fernandez is

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DISMISSED without leave to amend;

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4. Claims V and VI – Eighth Amendment failure to provide adequate medical care against

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Defendants Raya, Garcia, Polanco, Fernandez, Robiana, and Rodriguez are DISMISSED

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without leave to amend;
5. Claim VII – Fourteenth Amendment due process claim against Defendant Morales is

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DISMISS without leave to amend;

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6. Claim VIII – interference with Plaintiff’s administrative grievance claim against Defendant

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Tarnoff is DISMISSED without leave to amend; and

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7. Claim IX – conspiracy against Defendants Fernandez, Garcia, Morales, Robiana,

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Rodriguez and Tarnoff is DISMISSED without leave to amend.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

September 12, 2013

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UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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66h44d

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