Matthew V. Salinas v. Pogue et al

Filing 40

FINDINGS and RECOMMENDATIONS Recommending that this 29 Action Proceed Only Against Defendant C/O K. Gomness on Plaintiff's ADA Claim and Related State Law Claims, and that all other Claims and Defendants be Dismissed; Objections, if any, Due in 14 Days signed by Magistrate Judge Gary S. Austin on 1/8/2018. Referred to Judge Dale A. Drozd. Objections to F&R due by 1/25/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW V. SALINAS,

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Plaintiff,
vs.
KENNETH J. POGUE, et al.,
Defendants.

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1:16-cv-00520-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST DEFENDANT
C/O K. GOMNESS ON PLAINTIFF’S ADA
CLAIM AND RELATED STATE LAW
CLAIMS, AND THAT ALL OTHER CLAIMS
AND DEFENDANTS BE DISMISSED
OBJECTIONS, IF ANY, DUE IN 14 DAYS

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Matthew V. Salinas (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On April 14, 2016, Plaintiff

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filed the Complaint commencing this action. (ECF No. 1.) On November 17, 2016, Plaintiff

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filed the First Amended Complaint. (ECF No. 25.) On February 22, 2017, Plaintiff filed the

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Second Amended Complaint. (ECF No. 29.)

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The Second Amended Complaint names defendants Kenneth J. Pogue (CDCR

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Secretary), R. Ndoh (Warden, ASP), C. Herrera (Associate Warden, ASP), Captain N. Lopez,

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Correctional Officer (C/O) K. Gomness, C/O N. Palmer, and Doe Defendants #2-10 (ASP
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employees), and alleges ADA claims, equal protection claims, verbal harassment claims, state

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law claims, and retaliation claims.

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On September 21, 2017, the court screened Plaintiff’s Second Amended Complaint

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pursuant to 28 U.S.C. § 1915A and found that it states a cognizable ADA claim against

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defendant C/O Gomness in his official capacity, but no other claims. (ECF No. 32.) On

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September 1, 2017, Plaintiff was granted leave to either file a Third Amended Complaint or

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notify the Court that he is willing to proceed only on the claim found cognizable by the Court

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and related state law claims. (Id.) On December 20, 2017, Plaintiff filed a notice informing the

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Court that he is willing to proceed only on the cognizable ADA claim and related state law

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claims against defendant C/O Gomness. (ECF No. 38.)

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

This action proceed only against defendant C/O K. Gomness in his official
capacity on Plaintiff’s ADA claim, and related state law claims;

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2.

All remaining claims and defendants be dismissed from this action;

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3.

Plaintiff’s Fourteenth Amendment equal protection claims, verbal harassment

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claims, and First Amendment retaliation claims be dismissed from this action

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based on Plaintiff’s failure to state a claim; and

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4.

Defendants Kenneth J. Pogue (CDCR Secretary), R. Ndoh (Warden, ASP), C.

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Herrera (Associate Warden, ASP), Captain N. Lopez, C/O N. Palmer, and Doe

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Defendants #2-10 (ASP employees) be dismissed from this action, based on

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Plaintiff’s failure to state any claims against them.

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These Findings and Recommendations will be submitted to the United States District

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

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fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff

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may file written objections with the court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

January 8, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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