Stine v. Federal Bureau of Prisons

Filing 21

FINDINGS and RECOMMENDATIONS To: (1) Discharge Order To Show Cause (ECF No. 13 ); (2) Allow Plaintiff To Proceed On Cognizable First And Eighth Amendment Claims Against John Does 1 and 2; (3) Dismiss All Other Claims And Defendants With Prejudice; And (4) Require Plaintiff To Respond Within Forty-Five (45) Days Whether Further Discovery Is Required To Identify Doe Defendants, Fourteen (14) Day Objection Deadline, signed by Magistrate Judge Michael J. Seng on 7/27/2015. F&R's referred to Judge Anthony W. Ishii;Objections to F&R due by 8/13/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MIKEAL STINE,

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Plaintiff,

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CASE NO. 1:13-cv-01883-AWI-MJS (PC)
FINDINGS
TO:

AND RECOMMENDATIONS

v.
FEDERAL BUREAU OF PRISONS,

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Defendant.

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(1) DISCHARGE ORDER
CAUSE (ECF No. 13);

TO

SHOW

(2) ALLOW PLAINTIFF TO PROCEED ON
COGNIZABLE FIRST AND EIGHTH
AMENDMENT CLAIMS AGAINST JOHN
DOES 1 AND 2;
(3) DISMISS ALL OTHER CLAIMS AND
DEFENDANTS WITH PREJUDICE; AND

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(4) REQUIRE PLAINTIFF TO RESPOND
WITHIN
FORTY-FIVE
(45)
DAYS
WHETHER FURTHER DISCOVERY IS
REQUIRED
TO
IDENTIFY
DOE
DEFENDANTS

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FOURTEEN
DEADLINE

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(14)

DAY

OBJECTION

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I.

PROCEDURAL HISTORY

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Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to Bivens v. Six Unknown Named Agents of the Federal

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Bureau of Narcotics, 403 U.S. 388 (1971).

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On December 30, 2013, the Court screened Plaintiff’s first amended complaint

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and concluded that the factual allegations stated cognizable First and Eighth

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Amendment claims against John Does 1 and 2. (ECF No. 7.) Noting, however, that the

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case could not proceed against these Defendants until they were identified, the Court

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dismissed Plaintiff’s complaint with leave to amend. Thereafter, Plaintiff submitted a

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request for subpoenas and alternatively asked to identify Does 1 and 2 as Mr. Estrada

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and Jesus Valero, respectively. (ECF No. 11.)

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The Court subsequently concluded that dismissal of Plaintiff’s complaint was in

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error. Plaintiff should have been given an opportunity to identify Does 1 and 2, and also

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should have been given an opportunity to amend claims found not to be cognizable or to

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advise the Court whether he desired to proceed only on his cognizable claims. (ECF No.

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12.) The Court afforded Plaintiff an opportunity to so advise the Court. The Court denied

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Plaintiff’s request to identify Does 1 and 2 as Estrada and Valero on the ground that

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Plaintiff offered no factual allegations to support such substitution. The Court stated it

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would consider the possibility of limited discovery upon receiving Plaintiff’s election. (Id.)

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Plaintiff did not timely respond to the Court’s order. Accordingly, on November 18,

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2014, the Court ordered Plaintiff to show cause why the action should not be dismissed

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for failure to comply with a court order. (ECF No. 13.) Plaintiff responded to the order to

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show cause, stating his intent to proceed only on his cognizable claims against Does 1

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and 2. (ECF No. 14.) Plaintiff also requested that he be sent a copy of the first amended

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complaint. (Id.)

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II.

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DISCUSSION
Based on Plaintiff’s response to the order to show cause, the Court will

recommend that the order to show cause be discharged.

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Additionally, based on the Court’s prior screening order and Plaintiff’s election to

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proceed only on the claims found to be cognizable, the Court will recommend that the

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action proceed only on Plaintiff’s First and Eighth Amendment claims against Defendant
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Does 1 and 2, and that all other claims and Defendants be dismissed.

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It is unclear to the Court whether Plaintiff presently has a good faith basis to

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support substitution of Estrada and Valero for Does 1 and 2, respectively. Accordingly,

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the Court will recommend that Plaintiff advise the Court within forty-five (45) days of the

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order adopting these findings and recommendations whether he is in possession of such

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facts or whether further discovery is required. If further discovery is required, Plaintiff

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must advise the Court of the information he wishes to subpoena and his basis for

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believing such a subpoena will assist in identifying the Doe Defendants.1

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The Court notes that the Bureau of Prisons has made a special appearance in

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this action. (ECF No. 15.) Although BOP is not before the Court for this purpose, the

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Court nonetheless requests BOP’s assistance in providing Plaintiff the information he

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seeks absent a subpoena, to the extent BOP is willing and able to do so.

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III.

CONCLUSION AND RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1. The order to show cause (ECF No. 13) be DISCHARGED;

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2. The Clerk’s Office be directed to send Plaintiff a copy of the first amended

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complaint (ECF No. 5);
3. The action proceed on Plaintiff’s first amended complaint for First and Eighth

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Amendment violations against Defendant Does 1 and 2;

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4. All other claims asserted in the first amended complaint and all other

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Defendants be DISMISSED with prejudice; and

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5. Plaintiff be required to advise the Court within forty-five (45) days of the order

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adopting these findings and recommendations whether he is able to allege

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true facts to support substitution of Estrada and Valero for Does 1 and 2,

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respectively, or whether further discovery is required.

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Plaintiff previously requested to subpoena a staff roster listing the names of the SIA and SIS Lieutenant
present at USP-Atwater on July 31, 2012, but did not explain the basis for this request. (ECF No. 11.)

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The findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with the findings and recommendations, any party

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may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

July 27, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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