Miller v. Adonis, et al.

Filing 70

ORDER Requiring Defendants to File Responsive Pleadings signed by Magistrate Judge Erica P. Grosjean on 05/18/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES A. MILLER, 12 13 14 Plaintiff, 17 18 19 20 21 22 23 24 25 26 ORDER REQUIRING DEFENDANTS TO FILE RESPONSIVE PLEADINGS vs. THIRTY DAY DEADLINE M. ADONIS, et al., 15 16 Case No. 1:12-cv-00353-DAD-EPG-PC Defendants. I. PROCEDURAL BACKGROUND Charles A. Miller (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated by civil complaint filed by Plaintiff in the Fresno County Superior Court on June 15, 2010 (Case #10CECG02100). On March 8, 2012, defendants Adonis, Griffith, Gutierrez, Igbinosa, Medina, and Mendez removed the case to federal court and requested the court to screen the complaint under 28 U.S.C. § 1915A. (ECF Nos. 1, 2.) On March 8, 2012, defendants California Department of Corrections and Rehabilitation (“CDCR”), Ahmed, Anderson, Chudy, Duenas, Eddings, Pascual, and Walker joined in the Notice of Removal of Action. (ECF No. 4.) On October 4, 2012, the Court1 granted Defendants’ motion for the court to screen the complaint. (ECF No. 16.) 27 28 1 All Magistrate Judge orders before October 12, 2015 were issued by Magistrate Judge Gary S. Austin. 1 1 On October 17, 2013, the Court dismissed the Complaint for violation of Rule 8(a) of 2 the Federal Rules of Civil Procedure, with leave to amend. (ECF No. 32.) On December 2, 3 2013, Plaintiff filed the First Amended Complaint. (ECF No. 35.) On June 19, 2014, the Court 4 issued an order striking the First Amended Complaint for Plaintiff’s failure to comply with the 5 court’s order of October 17, 2013. (ECF No. 40.) Plaintiff was granted leave to file a Second 6 Amended Complaint. (Id.) On August 13, 2014, Plaintiff filed the Second Amended Complaint. 7 (ECF No. 44.) The Court screened the Second Amended complaint on June 29, 2015. (ECF 8 No. 46) The Court found that Plaintiff’s Second Amended Complaint stated a cognizable 9 Eighth Amendment medical claim against defendant Officer M. Medina for not allowing him to 10 sit down instead of standing, but found that the Second Amended Complaint failed to state any 11 other claims. (ECF No. 46). The Court gave Plaintiff a choice of going forward on that one 12 claim or further amending his complaint. 13 On July 10, 2015, Plaintiff filed a motion for reconsideration, asking for District Court 14 to conduct a de novo review and arguing that the Magistrate Judge erred in dismissing all but 15 one claim (with leave to amend). (ECF No. 47) On July 16, 2015, District Judge Lawrence J. 16 O’Neill denied Plaintiff’s motion for reconsideration. (ECF No. 47) 17 Plaintiff filed a Third Amended Complaint on July 31, 2015. (ECF No. 49) The Court 18 screened Plaintiff’s Third Amended Complaint and found that it stated cognizable claims for 19 against Defendants Medina, Chudy and Frederichs for Deliberate Indifference to Serious 20 Medical Needs in violation of the Eighth Amendment, as well as for violation of Government 21 Code § 845.6. The Court found that the Third Amended Complaint also stated a related Bane 22 Act claim against Defendant Medina. The Court also found that it stated cognizable claims 23 against Defendants Eddings and Walker for Retaliation in violation of the First Amendment, as 24 well as for violation of the Bane Act. The Court gave Plaintiff the choice of proceeding only 25 on the claims found cognizable by the Court, or indicating that he does not agree to proceed 26 only on those claims, subject to findings and recommendations consistent with the Court’s 27 order. 28 On October 5, 2016, Plaintiff notified the Court that he wished to proceed on the claims 2 1 found cognizable “so long as plaintiff’s doing do [sic] is not, and will not be, construed in 2 anyway as an expressed, or implied, waiver, forfeiture, [sic] abandonment or consent to 3 involuntary dismissal, of the remaining claims.” (ECF No. 61, emphasis in original). Plaintiff 4 indicated that he reserved his right to de novo review before the District Court. 5 Findings and Recommendations were issued on January 9, 2017, regarding Plaintiff’s 6 Third Amended Complaint. (ECF No. 67.) The Findings and Recommendations were adopted 7 in full on May 16, 2017. (ECF No. 69.) The following claims remain in the case: 8 a. A claim of deliberate indifference under the Eighth Amendment, against 9 defendants Medina, Chudy, and Frederichs; 10 b. A claim under the Bane Act against defendant Medina; and 11 c. Claims for retaliation under the First Amendment and the Bane Act, against 12 defendants Eddings and Walker; 13 (Id.) 14 II. 15 This litigation shall proceed to the next phase of the case. 16 The Court hereby orders the remaining defendants to file responsive pleadings to 17 ORDER Plaintiff’s Third Amended Complaint within 30 days of this order. 18 19 20 IT IS SO ORDERED. Dated: May 18, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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