Kirkelie v. Thissell

Filing 45

ORDER ADOPTING 41 FINDINGS AND RECOMMENDATIONS; Defendants' 29 Motion to Dismiss or in the alternative, for Summary Judgment is GRANTED as to Defendant: Masterson ONLY and DENIED in all other respects; CASE REFERRED back to the Magistrate Judge for further proceedings,signed by District Judge Dale A. Drozd on 03/29/17. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN KIRKELIE, 12 Plaintiff, 13 14 No. 1:15-cv-00735-DAD-SAB (PC) v. C.O. THISSELL, et al., 15 Defendants. 16 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT (Doc. Nos. 29, 41) 17 18 Plaintiff Jonathan Kirkelie is appearing pro se and in forma pauperis in this civil rights 19 20 action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). (Doc. 21 No. 1.) The action proceeds on plaintiff’s Second Amended Complaint (“SAC”), in which he 22 alleges Fourth and Eighth Amendment claims against defendant Correctional Officer Jeremy 23 Thissell and Eighth Amendment claims for failure to protect against defendants Lieutenant 24 Angela Smith, psychologist Amir Mahdavi, Lieutenant James Masterson, Lieutenant Steven 25 Knoll, and Does 1 and 2. (Doc. No. 23 at 1.) The matter was referred to a United States 26 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 27 ///// 28 1 1 On August 5, 2016, defendants filed a motion to dismiss or, in the alternative, a motion 2 for summary judgment. (Doc. No. 29.) After receiving two extensions of time in which to do so, 3 plaintiff filed his opposition to that motion on November 17, 2016. (Doc. No. 36.) Defendants 4 filed a reply on November 29, 2016. (Doc. No. 39.) 5 On February 2, 2017, the assigned magistrate judge issued findings and recommendations 6 addressing defendants’ motion. (Doc. No. 41.) Therein, the magistrate judge recommended that 7 defendants’ motion for summary judgment should be granted with respect to defendant 8 Masterson, and denied as to all other defendants. (Id. at 26.) These findings and 9 recommendations were served on the parties and contained notice that any objections thereto 10 were to be filed within thirty days of service. (Id.) After receiving an extension of time in which 11 to do so, defendants filed objections to the findings and recommendations on March 24, 2017. 12 (Doc. No. 44.) 13 In their objections, defendants argue that the magistrate judge erred in concluding that all 14 defendants except Masterson were not entitled to summary judgment in their favor. (Id.) With 15 respect to claims against defendant Thissell, defendants argue that the complaint alleges only 16 single pat down-search of plaintiff conducted on September 14, 2014, which did not rise to the 17 level of an Eighth Amendment violation. (Doc. No. 44 at 7–8.) However, this argument was 18 fully considered and rejected by the magistrate judge for the reasons explained in the findings and 19 recommendations. Therein, the magistrate judge observes that the SAC alleges a number of 20 different searches conducted by defendant Thissell, each of which allegedly involved sexually 21 harassing conduct. (Doc. No. 41 at 14–15.) The undersigned agrees with the magistrate judge’s 22 conclusion that defendant Thissell is not entitled to summary judgment with respect to plaintiff’s 23 claim against him. 24 With regard to defendants Mahdavi, Smith, and Knoll, defendants argue in their 25 objections that plaintiff has not sufficiently alleged, nor offered any evidence, that these 26 defendants inadequately performed their duties or were placed on notice of any “substantial risk 27 of harm” faced by plaintiff. (Doc. No. 44 at 9–10.) These arguments, however, are the same as 28 those presented in defendants’ summary judgment motion, and the undersigned finds these 2 1 arguments unpersuasive for the reasons articulated by the magistrate judge in his findings and 2 recommendations. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 4 de novo review of this case. Having carefully reviewed the entire file, including the defendants’ 5 objections, the court finds the findings and recommendations to be supported by the record and 6 by proper analysis. 7 Accordingly, 8 1. The February 2, 2017 findings and recommendations (Doc. No. 41) are adopted in 9 10 full; 2. Defendants’ motion to dismiss or, in the alternative, for summary judgment (Doc. No. 11 12 13 14 29) is granted as to defendant Masterson only and denied in all other respects; 3. This case is referred back to the magistrate judge for further proceedings. IT IS SO ORDERED. Dated: March 29, 2017 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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