Smithee et al v. California Correctional Institution et al

Filing 143

ORDER ADOPTING 141 Findings and Recommendations and DENYING Defendant Pratap Narayn's 134 Motion to Dismiss signed by District Judge Jennifer L. Thurston on 9/8/2023. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA SMITHEE, et al.

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Plaintiffs,

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v.

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CALIFORNIA CORRECTIONAL
INSTITUTION, et al.

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Case No. 1:19-cv-00004 JLT CDB
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANT PRATAP NARAYN’S MOTION
TO DISMISS
(Docs. 134, 141)

Defendants.
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Dana Smithee and E.M. filed a fifth amended complaint against Pratap Narayn, seeking to

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hold the defendant liable for deliberate indifference (cruel and unusual punishment) pursuant to

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42 U.S.C. § 1983. (Doc. 129.) Defendant moved to dismiss the fifth amended complaint. (Doc.

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134.)
The magistrate judge found Plaintiffs sufficiently pleaded a deliberate indifference claim

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against Defendant and recommended the motion be denied. (Doc. 141 at 10-18.) The magistrate

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judge also recommended Plaintiffs be granted leave to file a sixth amended complaint, “for the

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limited purpose of clarifying the damages sought in connection with Decedent’s pain and

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suffering.”1 (Id. at 18.) These Findings and Recommendations were served on all parties on

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August 18, 2023, and informed the parties that any objections were due 14 days after service.

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(Id.) The parties were also advised the “failure to file objections within the specified time may

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This sixth amended complaint was filed on August 24, 2023. (Doc. 142)

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waive the right to appeal the District Court’s order.” (Id., citing Wilkerson v. Wheeler, 772 F.3d

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834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) No objections

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were filed by either party. On August 24, 2023, Plaintiffs filed their sixth amended complaint.

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(Doc. 142.)

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Pursuant to 28 U.S.C. § 636(b)(1)(C), and Local Rule 304, this Court conducted a de novo

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review of this case. Having carefully reviewed the entire matter, this Court concludes the

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Findings and Recommendations are supported by the record and by proper analysis. Accordingly,

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the Court ORDERS:

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1.

The Findings and Recommendations (Doc. 141) are ADOPTED in full.

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2.

Defendant’s motion to dismiss (Doc. 134) is DENIED.

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3.

Plaintiffs’ sixth amended complaint filed on August 24, 2023 (Doc. 142) is

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deemed the operative complaint.
4.

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Defendant SHALL have fourteen from the date of entry of this Order to respond
to the sixth amended complaint.

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The action is referred to the assigned magistrate judge for further proceedings.

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IT IS SO ORDERED.
Dated:

September 8, 2023

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