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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW V. SALINAS, 12 13 14 15 Plaintiff, vs. KENNETH J. POGUE, et al., Defendants. 16 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 17 18 19 20 21 Matthew V. Salinas (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On April 14, 2016, Plaintiff 23 filed the Complaint commencing this action. (ECF No. 1.) On November 17, 2016, Plaintiff 24 filed the First Amended Complaint. (ECF No. 25.) On February 22, 2017, Plaintiff filed the 25 Second Amended Complaint. (ECF No. 29.) 26 The Second Amended Complaint names defendants Kenneth J. Pogue (CDCR 27 Secretary), R. Ndoh (Warden, ASP), C. Herrera (Associate Warden, ASP), Captain N. Lopez, 28 Correctional Officer (C/O) K. Gomness, C/O N. Palmer, and Doe Defendants #2-10 (ASP 1 1 employees), and alleges ADA claims, equal protection claims, verbal harassment claims, state 2 law claims, and retaliation claims. 3 On September 21, 2017, the court screened Plaintiff’s Second Amended Complaint 4 pursuant to 28 U.S.C. § 1915A and found that it states a cognizable ADA claim against 5 defendant C/O Gomness in his official capacity, but no other claims. (ECF No. 32.) On 6 September 1, 2017, Plaintiff was granted leave to either file a Third Amended Complaint or 7 notify the Court that he is willing to proceed only on the claim found cognizable by the Court 8 and related state law claims. (Id.) On December 20, 2017, Plaintiff filed a notice informing the 9 Court that he is willing to proceed only on the cognizable ADA claim and related state law 10 claims against defendant C/O Gomness. (ECF No. 38.) 11 Based on the foregoing, it is HEREBY RECOMMENDED that: 12 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; 13 14 2. All remaining claims and defendants be dismissed from this action; 15 3. Plaintiff’s Fourteenth Amendment equal protection claims, verbal harassment 16 claims, and First Amendment retaliation claims be dismissed from this action 17 based on Plaintiff’s failure to state a claim; and 18 4. Defendants Kenneth J. Pogue (CDCR Secretary), R. Ndoh (Warden, ASP), C. 19 Herrera (Associate Warden, ASP), Captain N. Lopez, C/O N. Palmer, and Doe 20 Defendants #2-10 (ASP employees) be dismissed from this action, based on 21 Plaintiff’s failure to state any claims against them. 22 These Findings and Recommendations will be submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 24 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 25 may file written objections with the court. The document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 27 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 28 /// 2 1 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 2 (9th Cir. 1991)). 3 4 5 6 IT IS SO ORDERED. Dated: January 8, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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