Rivers v. King et al

Filing 13

FINDINGS And RECOMMENDATIONS That Defendants King And Lam Be Dismissed For Failure To State A Claim Upon Which Relief Could Be Granted, Fourteen-Day Deadline (Doc. 7 ), signed by Magistrate Judge Barbara A. McAuliffe on 1/28/2016. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/16/2016. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVE RIVERS,

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Plaintiff,
v.
AUDREY KING, et al.,
Defendants.

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Case No.: 1:15-cv-00276-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS THAT
DEFENDANTS KING AND LAM BE DISMISSED
FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED
FOURTEEN-DAY DEADLINE

Plaintiff Steve Rivers is a civil detainee proceeding pro se and in forma pauperis in this civil

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rights action. On January 4, 2016, the Court screened Plaintiff’s first complaint and found that

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Plaintiff stated a cognizable Fourteenth Amendment claim in connection with his February 2013

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infection against Defendants Nguyen, Sandhu, and Lopez, but failed to state a claim against

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Defendants King, Lam, and unnamed Doe defendants. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010). In its January 4, 2016 order, the Court informed Plaintiff of the deficiencies in his

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complaint regarding Defendants King, Lam and the unnamed Doe defendants, and granted Plaintiff

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the opportunity to file a second amended complaint that corrects the identified deficiencies, or to

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notify the Court that he is willing to proceed only on his cognizable claims.

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On January 21, 2016, Plaintiff filed a notice stating that he is willing to proceed only on the
claims found by the Court to be cognizable. He further stated that he filed a second amended
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complaint with the claims and allegations that he has elected not to pursue stricken-out or removed, so

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as not to confuse Defendants Nguyen, Sandhu and Lopez when they are served with process. Plaintiff

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specifically explained that his second amended complaint, also filed on January 21, 2016, is not an

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attempt to cure any deficiencies found in his prior amended complaint.

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Because Plaintiff has filed a notice indicating his desire to proceed only against Defendants

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Nguyen, Sandhu and Lopez, the Court recommends dismissal of Defendants King and Lam for

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Plaintiff’s failure to state a claim upon which the Court could grant relief. See Lopez v. Smith, 203

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F.3d 1122, 1127 (9th Cir. 2007)(pro se litigant must be given leave to amend his or her complaint

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unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment).

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See also Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with prejudice upheld

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where court had instructed plaintiff regarding deficiencies in prior order dismissing claim with leave to

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amend).

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Accordingly, IT IS HEREBY RECOMMENDED that Defendants Audrey King and Phil Lam,
M.D., be dismissed for failure to state a claim upon which relief can be granted.
These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 18 U.S.C. § 636(b)(1)(B). Within fourteen (14)

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days after being served with these findings and recommendations, Plaintiff may file written objections

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with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in waiver of rights on appeal. Wilkerson v. Wheeler, 77 F.3d 834 (9th Cir. 2014)(citing Baxter

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v. Sullivan, 923 F.2d 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 28, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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