Jacobsen v. Curran et al

Filing 69

ORDER Modifying Order Adopting Findings and Recommendations to Dismiss Non-Cognizable Claims 68 , signed by Chief Judge Lawrence J. O'Neill on 3/29/2018: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL NEIL JACOBSEN,
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Plaintiff,

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v.

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CASE NO. 1:16-cv-01050-AWI-MJS (PC)
ORDER MODIFYING ORDER ADOPTING
FINDINGS AND RECOMMENDATION TO
DISMISS NON-COGNIZABLE CLAIMS

OFFICER CURRAN, et al.,
(ECF No. 68)
Defendants.

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FOURTEEN (14) DAY DEADLINE

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Plaintiff is a former county inmate proceeding pro se and in forma pauperis in this

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civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on

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Plaintiff’s first amended complaint against Defendants Curran and Gonzalez for

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inadequate medical care in violation of the Eighth Amendment of the United States

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Constitution. (ECF No. 11.)

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I.

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Relevant Procedural Background
On March 19, 2018, the Court adopted the Magistrate Judge’s recommendation

(ECF No. 43) that certain non-cognizable claims be dismissed. (ECF No. 68.)

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Also pending before the Court are Defendants’ motions for summary judgment.

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(ECF Nos. 35, 38.) The Court has now reviewed Plaintiff’s opposition to those motions.

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(ECF No. 58.) Upon review, given the requirement to treat pro se parties’ pleadings

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liberally, the Court believes that Plaintiff’s opposition should be treated as a timely

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objection to the above-mentioned findings and recommendation. As such, the Court will

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review Plaintiff’s objections de novo to determine if they raise an issue of law or fact.

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II.

Objections Raise Additional Cognizable Claim

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Upon review, Plaintiff’s objections indicate that Plaintiff has alleged an additional

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cognizable claim against Defendant Gonzalez. Plaintiff’s claim against Defendant

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Gonzalez is based on Plaintiff’s allegation that Defendant Gonzalez removed Plaintiff’s

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PIC line and discontinued Plaintiff’s antibiotics, contrary to the orders of Plaintiff’s

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surgeon. (ECF No. 12 at 9-10.) In the operative complaint, Plaintiff alleges his PIC line

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was removed twice. One removal was attributed to Defendant Gonzalez, but the second

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removal was not attributed to any Defendant and was dismissed on that basis. (Id. at

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10.) However, Plaintiff now indicates that the second removal was also conducted by

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Defendant Gonzalez. (ECF No. 58 at 2.)

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Accordingly, Plaintiff has alleged a cognizable claim of Eighth Amendment

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deliberate indifference against Defendant Gonzalez based on the allegation that

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Defendant Gonzalez twice removed Plaintiff’s PIC line contrary to the orders of his

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surgeon.

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III.

Conclusion and Order

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Based on the foregoing, it is HEREBY ORDERED THAT the order adopting

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findings and recommendation to dismiss non-cognizable claims (ECF No. 68) is modified

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to hold that Plaintiff has alleged a cognizable claim against Defendant Gonzalez based

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on Plaintiff’s allegation that Defendant Gonzalez removed Plaintiff’s PIC line on two

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occasions.

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In light of this determination, and to the extent necessary, Defendant Gonzalez
may file an amended answer within fourteen days of the date of this order.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

March 29, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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