Smith v. Goss, et al.

Filing 18

ORDER ADOPTING 16 FINDINGS AND RECOMMENDATIONS regarding Dismissal of Certain Claims and Defendants and to Sever Certain Claims; ORDER DIRECTING Clerk of Court to Open Three (3) New Actions; ORDER DIRECTING Plaintiff to Submit Filing Fee or Application to proceed In Forma Pauperis as to each new action, signed by Chief Judge Lawrence J. O'Neill on 06/18/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,
Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DISMISSAL OF CERTAIN CLAIMS AND
DEFENDANTS AND TO SEVER CERTAIN
CLAIMS

Defendants.

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(ECF No. 16)

v.

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Case No. 1:16-cv-01356-LJO-BAM (PC)

GOSS, et al.,

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ORDER DIRECTING CLERK OF COURT TO
OPEN THREE (3) NEW ACTIONS

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ORDER DIRECTING PLAINTIFF TO
SUBMIT FILING FEE OR APPLICATION TO
PROCEED IN FORMA PAUPERIS AS TO
EACH NEW ACTION

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THIRTY (30) DAY DEADLINE

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Plaintiff Lawrence Christopher Smith (“Plaintiff”) is a state prisoner proceeding pro se

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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was

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referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule

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302.

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On May 23, 2018, the assigned Magistrate Judge issued findings and recommendations

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recommending that: (1) this action proceed on Plaintiff’s first amended complaint only as to the

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excessive force claim against Defendants Sotelo, P. Chanelo, D. Wattree, K. Hunt, L. Castro, A.
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Gonzalez, E. Ramirez, and R. Rodriguez, on March 13, 2013; (2) the Court sever the misjoined

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claims, into three separate cases and such cases be opened, for excessive force for the incidents

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of: September 9, 2013 against Defendant D. Knowlton; November 15, 2013 against Defendants

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E. Weiss, O. Hurtado, and F. Zavleta; and February 6, 2014 against Defendants D. Gibbs and D.

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Hardy; (3) Plaintiff’s improperly joined claims of February 4, 2015, February 25, 2015, and

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September 2, 2015 be dismissed without prejudice to re-filing; and (4) the remaining claims and

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defendants be dismissed for failure to state a cognizable claim. (ECF No. 16.) Those findings

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and recommendations were served on Plaintiff and contained notice that any objections thereto

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were to be filed within fourteen (14) days after service. (Id. at 19.) Plaintiff timely filed

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objections on June 15, 2018. (ECF No. 17).

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In his objections, Plaintiff argues that all of his claims should be allowed to proceed in one

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action due to a vast, overarching conspiracy by officers at multiple institutions to retaliate against

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him for exercising his right to file grievances and law suits. Plaintiff further contends that, if the

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Court finds that he has failed to sufficiently allege the existence of such conspiracy, that he be

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permitted to file a second amended complaint in this action.
None of Plaintiff’s objections provide a legal basis on which to question the Magistrate

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Judge’s findings and recommendations. As Plaintiff has been informed, he must set forth

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sufficient factual allegations demonstrating that the defendants each shared the common objective

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of a conspiracy, and may not merely set forth conclusory allegations that a vast conspiracy exists.

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Plaintiff was provided with the relevant legal standards and an opportunity to amend, but has

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been unable to cure the identified deficiencies in his first two complaints. Further leave to amend

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is not warranted. Plaintiff’s remaining arguments are unpersuasive.

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

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de novo review of the case and carefully reviewed the entire file, including Plaintiff’s objections.

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The Court concludes that the Magistrate Judge’s findings and recommendations are supported by

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the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations issued on May 23, 2018, (ECF No. 16), are adopted in
full;
2. This action shall proceed on Plaintiff’s first amended complaint, filed July 14, 2017, (ECF

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No. 12), only as to the claim against Defendants Sotelo, P. Chanelo, D. Wattree, K. Hunt,

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L. Castro, A. Gonzalez, E. Ramirez, and R. Rodriguez, at Kern Valley State Prison, for

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excessive force in violation of the Eighth Amendment for the incident on March 13, 2013;

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3. Pursuant to Federal Rule of Civil Procedure 21, the Court severs the misjoined claims into

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three separate cases;
4. The Clerk of the Court is directed to assign separate case numbers to each of the following
claims:
a. Excessive force for the incident of September 9, 2013, against Defendant D.
Knowlton, of California Correctional Institution (“CCI”) at Tehachapi;
b. Excessive force for the incident of November 15, 2013, against Defendants E.
Weiss, O. Hurtado, and F. Zavleta, of CCI at Tehachapi; and
c. Excessive force for the incident of February 6, 2014, against Defendants D. Gibbs
and D. Hardy, of CCI at Tehachapi;
5. The Clerk of the Court is directed to issue and serve by mail new case documents to
Plaintiff indicating each of the newly assigned case numbers;
6. The Clerk of the Court is directed to file a copy of Plaintiff’s First Amended Complaint,

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(ECF No. 12), and a copy of this order in each newly opened case and shall directly assign

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each of the three new cases to the same District Judge and Magistrate Judge as in case

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1:16-cv-01356-LJO-BAM (PC);

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7. As to each new case number, within thirty (30) days from the date of service of this

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order, Plaintiff will be required to file a $400.00 filing fee or file a motion for leave to

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proceed in forma pauperis;

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8. Plaintiff’s excessive force claims arising from incidents of February 4, 2015; February 25,

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2015; and September 2, 2015 are dismissed without prejudice because Plaintiff is not
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time-barred from alleging these claims in a new action;

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a. Plaintiff should not delay in filing new cases regarding these incidents;
9. All other defendants and claims, including for sexual assault in violation of the Eighth

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Amendment, deliberate medical indifference in violation of the Eighth Amendment,

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retaliation in violation of the First Amendment, violation of Due Process (including false

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RVRs, investigative employee, placement in an involuntary mental health program),

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denial of access to court, conspiracy, and confiscation of property, are dismissed, with

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prejudice, for failure to state a cognizable claim; and

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10. This action is referred back to the assigned Magistrate Judge for further proceedings
consistent with this order.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

June 18, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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