Consiglio v. Brown et al

Filing 12

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING Certain Claims and Defendants for the Failure to State a Claim 10 , signed by District Judge Anthony W. Ishii on 6/27/17. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 SAM CONSIGLIO, JR., 11 Case No. 1:16-cv-01268-AWI-SAB (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING CERTAIN CLAIMS AND DEFENDANTS FOR THE FAILURE TO STATE A CLAIM Plaintiff, 12 v. 13 EDMUND G. BROWN, et al., 14 (ECF No. 10) Defendants. 15 16 Plaintiff Sam Consiglio, Jr. is a civil detainee proceeding pro se and in forma pauperis in 17 18 this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On May 1, 2017, the assigned Magistrate Judge issued findings and recommendations 20 21 that this matter proceed only on Plaintiff’s claims against Defendants Edmund Brown, Pamela 22 Ahlin, and Audrey King, that the prohibitions in 9 C.C.R. § 891 (“Section 891”) and 9 C.C.R. § 1 23 4350 amount to punishment under the Fourteenth Amendment. (ECF No. 8.) The Magistrate 24 1 Plaintiff pleaded that Section 891 prohibits non-LPS patients, such as sexually violent predators (“SVP”), from having any access to the internet, and that Section 4350 prohibits all patients in the 25 custody of state hospitals from possessing any electronic devices with wireless capabilities, including but 26 not limited to cell phones, computers, PDAs, electronic gaming devices, and graphing calculators with internet capabilities. Plaintiff further pleaded that he is a civil detainee being held at Coalinga State 27 Hospital as a SVP, according to California’s Sexually Violent Predator Act, Cal. Welf. & Instit. Code §§ 6600 et seq. 28 1 1 Judge further found that all other claims and defendants should be dismissed for the failure to 2 state a cognizable claim for relief. Plaintiff was directed to file his objections to those findings 3 and recommendations within fourteen days. That deadline has passed, and no objections have 4 been filed. 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 6 Court has conducted a de novo review of Plaintiff’s request. The Court finds the findings and 7 recommendations to be supported by the record and by proper analysis. 8 Accordingly, it is HEREBY ORDERED that: 9 1. The findings and recommendations filed on May 1, 2017 (ECF No. 10) are 10 ADOPTED in full; 11 2. This action shall proceed against Defendants Edmund Brown, Governor of the 12 State of California, Pamela Ahlin, Director of the California Department of State Hospitals, and 13 Audrey King, Director of CSH, on Plaintiff’s claim that the prohibitions in 9 C.C.R. § 891 and 9 14 C.C.R. § 4350 amount to punishment under the Fourteenth Amendment; 15 3. Defendants Jeffrey Beard, Lopez, Dr. Ismail Patel, and Dr. Kongara Nanditha, 16 and all other claims, are hereby dismissed for the failure to state a cognizable claim upon which 17 relief may be granted; 18 4. The Clerk of the Court is directed to update the docket and caption to reflect the 19 foregoing; and 20 5. This matter is referred back to the assigned Magistrate Judge for further 21 proceedings consistent with this order. 22 23 IT IS SO ORDERED. 24 Dated: June 27, 2017 SENIOR DISTRICT JUDGE 25 26 27 28 2

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