Stewart v. Holland et al

Filing 32

ORDER ADOPTING 27 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER DISMISSING Certain Claims and Defendants; and ORDER DENYING AS MOOT 30 Plaintiff's Motion to Correct Clerical Error signed by District Judge Dale A. Drozd on 7/6/2017. Matthew Cate, V. Cortez, D. Duncan, P. Grant, K. Holland, R. Hoover, P. Matzen, K. Nowels, I. Alomari and M. Bryant terminated. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRACY L. STEWART,

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No. 1:14-cv-00322-DAD-BAM

Plaintiff,
v.
K. HOLLAND, et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND REFERRING
BACK TO MAGISTRATE JUDGE
(Doc. Nos. 27, 30)

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

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action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 13, 2016, the assigned magistrate judge screened plaintiff’s amended

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complaint and issued findings and recommendations, recommending that this action proceed on

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plaintiff’s claims against defendants Serna and Langhardt for excessive use of force in violation

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of the Eighth Amendment, against defendants Serna, Langhardt, Carey, and Nixon for failure to

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decontaminate plaintiff in violation of the Eighth Amendment, against defendant Nixon for

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deliberate indifference to serious medical needs, and against defendant Langhardt for retaliation

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in violation of the First Amendment. These claims arise out of plaintiff’s allegations that, after he

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made complaints about sexual harassment by defendant Langhardt, plaintiff was pepper-sprayed

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during an escort on April 3, 2013 without cause, and was not properly decontaminated or
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provided with medical treatment. The magistrate judge recommended that all other claims, -

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including his sexual harassment, supervisory liability and inadequate medical care with respect to

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a knee brace claims - and defendants be dismissed for the failure to state a cognizable claim for

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relief. (Doc. No. 27.) These findings and recommendations were served on plaintiff, and

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contained notice he could file any objections within fourteen days. On September 26, 2016,

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plaintiff timely filed objections. (Doc. No. 28.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has

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conducted a de novo review of this case. Having carefully reviewed the entire file, including

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plaintiff’s submissions, the court finds the September 13, 2016 findings and recommendations to

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be supported by the record and by proper analysis. Despite plaintiff’s belief that it was “common

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sense” that he needed the knee brace he alleges was purposefully packed away during his transfer

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and therefore made inaccessible to him, his objections provide no basis upon which to disagree

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with the magistrate judge’s findings and recommendations. Similarly, plaintiff has provided no

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persuasive reason to believe he can state a claim related to the alleged sexual harassment or

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purported violations of the equal protection clause, and no reason to believe he can allege facts

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sufficient to demonstrate supervisory liability.

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Given the foregoing:

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1. The findings and recommendations issued September 13, 2016 (Doc. No. 27) are

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adopted in full;
2. This action shall proceed on plaintiff’s claims against defendants Serna and Langhardt

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for excessive force in violation of the Eighth Amendment, against defendants Serna, Langhardt,

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Carey and Nixon for failure to decontaminate plaintiff in violation of the Eighth Amendment,

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against defendant Nixon for deliberate indifference to serious medical needs, and against

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defendant Langhardt for retaliation in violation of the First Amendment;

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3. All other claims and defendants not listed above are dismissed from this action for the
failure to state a claim upon which relief may be granted;
4. The Clerk of the Court is directed to update the caption and docket to reflect the above
dismissals and to add defendant Nixon to the docket;
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5. Plaintiff’s motion to correct clerical error is denied as moot (Doc. No. 30); and

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6. This matter is referred back to the assigned magistrate judge for proceedings consistent

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with this order.

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IT IS SO ORDERED.

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Dated:

July 6, 2017
UNITED STATES DISTRICT JUDGE

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