Bradford v. Ogbuehi

Filing 21

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants 19 , signed by District Judge Dale A. Drozd on 12/4/2018: This case is referred back to the assigned magistrate judge for further proceedings. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND ALFORD BRADFORD,

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Plaintiff,

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No. 1:17-cv-01128-DAD-SAB

v.
C. OGBUEHI, et al.,

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Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 19)

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Plaintiff Raymond Alford Bradford is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 29, 2018, the court screened plaintiff’s first amended complaint and found that

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it stated a cognizable claim against defendants Usher, Rimbach, German, Ulit, Spaeth and Sao for

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violation of the Eighth Amendment. (Doc. No. 17.) The court also notified plaintiff of

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deficiencies in his allegations in other respects, and ordered him to notify the court whether he

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wished to proceed on the claim found by the court to be cognizable, or instead wished to file a

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second amended complaint. (Id at 6.) On September 19, 2018, plaintiff objected to the screening

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order and argued that he had sufficiently stated a claim against all named defendants. (Doc. No.

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18.)
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On September 21, 2018, the assigned magistrate judge construed plaintiff’s objection as a

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notification that he declined to file a second amended complaint and issued findings and

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recommendations, recommending that this action proceed only against defendants Usher,

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Rimbach, German, Ulit, Spaeth, and Sao, in their individual capacities, for violation of the Eighth

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Amendment, and that all other claims and defendants be dismissed. (Doc. No. 19.) The 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 thirty days after service. (Id. at 7.) Plaintiff timely filed objections on

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October 18, 2018. (Doc. No. 20.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has

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conducted a de novo review of this case. Having carefully reviewed the entire file, including

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plaintiff’s objections, the undersigned concludes the findings and recommendations are supported

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by the record and by proper analysis.

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Plaintiff again asserts in his objections that he sufficiently stated a claim based on his

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allegations with respect to his Deep Vein Thrombosis (DVT) condition and his claim of

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retaliation. However, with respect to DVT, the magistrate judge found that this claim was wholly

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separate from plaintiff’s Valley Fever claim, and therefore could not be brought in the same

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action pursuant to Federal Rule of Civil Procedure 18(a). Plaintiff’s objections do not call that

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finding into question. The court also concurs with the magistrate judge’s finding that even

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construed liberally, the operative complaint fails to allege facts sufficient to state a claim for

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retaliation.

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Finally, the court notes that plaintiff in his objections refers to the assigned magistrate

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judge as “boneheaded,” and states that the judge “should throw himself under the bus, out of

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court, and off this case. . . .” (Doc. No. 20 at 5.) Plaintiff has previously used such language in

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referring to the assigned magistrate judge (Doc. No. 18 at 1), and was warned that use of

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inappropriate language and harassing conduct is sanctionable, and would result in the dismissal of

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this action if repeated. (Doc. No. 19 at 7.) At this time, the court will exercise its discretion not

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to immediately dismiss this action. However, plaintiff is advised that any further similar breaches

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of decorum will result in the dismissal of this action as an appropriate sanction.
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For these reasons,

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1.

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The findings and recommendations issued on September 21, 2018 (Doc. No. 19)
are adopted in full;

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This action proceeds on plaintiff’s claim against defendants Usher, Rimbach,

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German, Ulit, Spaeth, and Sao for violation of the Eighth Amendment based on

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plaintiff’s allegations related to Valley Fever;

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3.

All other claims and defendants are dismissed; and

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This case is referred back to the assigned magistrate judge for further proceedings.

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IT IS SO ORDERED.
Dated:

December 4, 2018
UNITED STATES DISTRICT JUDGE

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