Smithee et al v. California Correctional Institution et al

Filing 47

ORDER ADOPTING in Full the 41 FINDINGS AND RECOMMENDATIONS GRANTING Defendants' 29 32 Motions to Dismiss; ORDER Deeming the 45 Third Amended Complaint Filed August 29, 2019 as the Operative Pleading signed by Chief Judge Lawrence J. O'Neill on 9/6/2019. (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.
CALIFORNIA CORRECTIONAL
INSTITUTION, et al.,

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Defendants.
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Case No.: 1:19-cv-0004 - LJO - JLT
ORDER ADOPTING IN FULL THE FINDINGS
AND RECOMMENDATIONS GRANTING
DEFENDANTS’ MOTIONS TO DISMISS
(Docs. 29, 32, and 41)
ORDER DEEMING THE THIRD AMENDED
COMPLAINT FILED AUGUST 29, 2019 AS THE
OPERATIVE PLEADING
(Doc. 45)

Plaintiffs allege decedent Cyrus Ayers was not provided proper medical care during his

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incarceration at the California Correctional Institution in Tehachapi, which resulted in his death. (See

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generally Doc. 26) Defendants Litt-Stoner, Seymour, Nesson and Celosse filed motions to dismiss the

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second amended complaint. (Docs. 29, 32) On August 15, 2019, the assigned magistrate judge

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determined Plaintiffs failed to allege facts sufficient to support their claims and recommended the

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second amended complaint be dismissed with leave to amend. (Doc. 41)

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Plaintiffs were given fourteen days to file any objections to the recommendation that the

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complaint be dismissed with leave to amend. (Doc. 41 at 14) In addition, Plaintiff were “advised that

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failure to file objections within the specified time may waive the right to appeal the District Court’s

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order.” (Id., citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d

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834, 834 (9th Cir. 2014)). To date, no objections have been filed. However, on August 29, 2019,

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Plaintiffs filed a Third Amended Complaint. (Doc. 45)
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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.

The Findings and Recommendations dated August 15, 2019 (Doc. 41) are ADOPTED
IN FULL;

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2.

Plaintiffs’ Second Amended Complaint is DISMISSED; and

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3.

The Third Amended Complaint filed on August 29, 2019 (Doc. 45) is deemed the
operative pleading in the action.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

September 6, 2019

UNITED STATES CHIEF DISTRICT JUDGE

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