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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JONATHAN KIRKELIE,

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Plaintiff,

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No. 1:15-cv-00735-DAD-SAB (PC)

v.
C.O. THISSELL, et al.,

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Defendants.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING
DEFENDANTS’ MOTION TO DISMISS OR,
IN THE ALTERNATIVE, FOR SUMMARY
JUDGMENT
(Doc. Nos. 29, 41)

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Plaintiff Jonathan Kirkelie is appearing pro se and in forma pauperis in this civil rights

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action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). (Doc.

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No. 1.) The action proceeds on plaintiff’s Second Amended Complaint (“SAC”), in which he

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alleges Fourth and Eighth Amendment claims against defendant Correctional Officer Jeremy

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Thissell and Eighth Amendment claims for failure to protect against defendants Lieutenant

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Angela Smith, psychologist Amir Mahdavi, Lieutenant James Masterson, Lieutenant Steven

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Knoll, and Does 1 and 2. (Doc. No. 23 at 1.) The matter was referred to a United States

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

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On August 5, 2016, defendants filed a motion to dismiss or, in the alternative, a motion

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for summary judgment. (Doc. No. 29.) After receiving two extensions of time in which to do so,

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plaintiff filed his opposition to that motion on November 17, 2016. (Doc. No. 36.) Defendants

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filed a reply on November 29, 2016. (Doc. No. 39.)

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On February 2, 2017, the assigned magistrate judge issued findings and recommendations

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addressing defendants’ motion. (Doc. No. 41.) Therein, the magistrate judge recommended that

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defendants’ motion for summary judgment should be granted with respect to defendant

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Masterson, and denied as to all other defendants. (Id. at 26.) These findings and

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recommendations were served on the parties and contained notice that any objections thereto

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were to be filed within thirty days of service. (Id.) After receiving an extension of time in which

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to do so, defendants filed objections to the findings and recommendations on March 24, 2017.

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(Doc. No. 44.)

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In their objections, defendants argue that the magistrate judge erred in concluding that all

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defendants except Masterson were not entitled to summary judgment in their favor. (Id.) With

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respect to claims against defendant Thissell, defendants argue that the complaint alleges only

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single pat down-search of plaintiff conducted on September 14, 2014, which did not rise to the

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level of an Eighth Amendment violation. (Doc. No. 44 at 7–8.) However, this argument was

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fully considered and rejected by the magistrate judge for the reasons explained in the findings and

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recommendations. Therein, the magistrate judge observes that the SAC alleges a number of

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different searches conducted by defendant Thissell, each of which allegedly involved sexually

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harassing conduct. (Doc. No. 41 at 14–15.) The undersigned agrees with the magistrate judge’s

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conclusion that defendant Thissell is not entitled to summary judgment with respect to plaintiff’s

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claim against him.

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With regard to defendants Mahdavi, Smith, and Knoll, defendants argue in their

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objections that plaintiff has not sufficiently alleged, nor offered any evidence, that these

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defendants inadequately performed their duties or were placed on notice of any “substantial risk

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of harm” faced by plaintiff. (Doc. No. 44 at 9–10.) These arguments, however, are the same as

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those presented in defendants’ summary judgment motion, and the undersigned finds these
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arguments unpersuasive for the reasons articulated by the magistrate judge in his findings and

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recommendations.

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

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de novo review of this case. Having carefully reviewed the entire file, including the defendants’

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objections, the court finds the findings and recommendations to be supported by the record and

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by proper analysis.

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Accordingly,

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1. The February 2, 2017 findings and recommendations (Doc. No. 41) are adopted in

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full;
2. Defendants’ motion to dismiss or, in the alternative, for summary judgment (Doc. No.

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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

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