Cavanaugh v. Youngblood et al

Filing 40

ORDER adopting 38 Findings and Recommendations granting 28 Motion to Dismiss with leave to amend signed by Chief Judge Lawrence J. O'Neill on 4/2/2018. Amended Complaint due by 5/7/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK J. CAVANAUGH,
Plaintiff,

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v.
DONNY YOUNGBLOOD, et al.,
Defendants.

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Case No.: 1:17-cv-0832 - LJO - JLT
ORDER ADOPTING IN FULL THE FINDINGS
AND RECOMMENDATIONS GRANTING THE
MOTION TO DISMISS WITH LEAVE TO
AMEND
(Docs. 28, 38)

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Plaintiff is housed at Atascadero State Hospital. He alleges that he was housed for four weeks

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at Kern County’s Lerdo Pre-Trial Facility in order to attend a hearing in Kern County Superior Court,

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and while at Lerdo was erroneously placed in a cell with Norteno gang members, despite that he was a

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Norteno gang drop-out. Within days, he was attacked and suffered injuries. Plaintiff asserts the state

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defendants should have acted to prevent his injuries.

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The magistrate judge found that, based upon the facts alleged and revealed during the hearing

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upon Defendants’ motion to dismiss, the Eighth Amendment does not apply in this case. Therefore, the

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magistrate judge recommended the motion be granted with leave to amend claims based upon the

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Fourteenth Amendment. (Doc. 38 at 1-2) In addition, the magistrate judge recommended the claim for

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negligence be dismissed with leave to amend, and Plaintiff’s request to dismiss defendant Price be

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granted. (Id. at 4, 6). The parties were given fourteen days to file any objections to this

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recommendation. (Id. at 6) In addition, the parties were “advised that failure to file objections within
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the specified time may waive the right to appeal the Order of the District Court.” (Id., citing Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991). To date, no objections have been filed.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United

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School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court conducted a de novo review of the case.

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Having carefully reviewed the file, the Court finds the Findings and Recommendations are supported

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by the record and proper analysis.

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Accordingly, IT IS HEREBY ORDERED:

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1.

IN FULL;

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The Findings and Recommendations dated March 12, 2018 (Doc. 38) are ADOPTED

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The motion to dismiss the complaint is GRANTED without leave to amend regarding

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any Eighth Amendment claims, but with leave to amend to assert claims under the

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Fourteenth Amendment;

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3.

The motion to dismiss the claim based upon state law negligence is GRANTED with
leave to amend;

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4.

Plaintiff’s request to dismiss defendant Price is GRANTED; and

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5.

Plaintiff’s amended Complaint is due thirty (30) days from the date of this Order.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

April 2, 2018

UNITED STATES CHIEF DISTRICT JUDGE

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