Smithee et al v. California Correctional Institution et al

Filing 91

FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims, signed by Magistrate Judge Jennifer L. Thurston on 9/20/2020. Referred to Judge Drozd. Objections to F&R due within 14 days. (Hall, 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.,
Defendants.

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Case No.: 1:19-cv-00004-NONE-JLT
FINDINGS AND RECOMMENDATIONS TO
DISMISS CERTAIN CLAIMS
[FOURTEEN-DAY OBJECTION DEADLINE]

After Cyrus Ayers killed himself while in custody, his child, E.M. and his mother, Dana

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Smithee, filed this lawsuit. They allege Ayers was not provided proper medical care during his

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incarceration at the California Correctional Institution in Tehachapi and this resulted in his death. In

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their fourth amended complaint, Plaintiffs claim that Defendant Litt-Stoner, Chief Executive Officer

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for Health Care Services at CCI, Defendant Narayan, Chief Psychiatrist at CCI, and Defendants

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Seymour and Celosse, psychologists at CCI, are liable for Ayers’ death. (Doc. 65.)

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On January 30, 2020, Defendants Litt-Stoner, Narayan, Seymour, and Celosse moved the

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Court to dismiss the action. (Docs. 66, 67.) The Court dismissed Defendants Narayan, Seymour, and

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Litt-Stoner from the action, and denied Defendants’ motion to dismiss Plaintiffs’ survival claim

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against Celosse based on Ayers’ Eighth Amendment rights and Plaintiffs’ Fourteenth Amendment

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claim. (Doc. 88.) The Court also dismissed with leave to amend Plaintiffs’ wrongful death claims

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against Celosse. (Id.)
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On September 17, 2020, Plaintiffs filed a notice of election not to amend the fourth amended

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complaint and to proceed on their survival claim against Celosse based on Ayers’ Eighth Amendment

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Rights and their Fourteenth Amendment claim. (Doc. 90 at 2.)
RECOMMENDATION

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Based upon the foregoing, the Court RECOMMENDS:

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1.

Plaintiffs’ wrongful death claims against Defendant Celosse be DISMISSED; and

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Defendant Celosse be required to file an answer within SIXTY DAYS of this order
becoming final.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within fourteen

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days after being served with these findings and recommendations, Plaintiffs may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiffs are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

September 20, 2020

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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