Smithee et al v. California Correctional Institution et al

Filing 92

ORDER ADOPTING 91 Findings and Recommendations to Dismiss Certain Claims and ORDER Directing Defendant Celosse to File an Answer Within Sixty (60) Days signed by District Judge Dale A. Drozd on 10/16/2020. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANA SMITHEE, et al., 12 Plaintiffs, 13 14 15 v. CALIFORNIA CORRECTIONAL INSTITUTION, et al., Defendants. 16 ) ) ) ) ) ) ) ) ) ) No.: 1:19-cv-00004-NONE-JLT ORDER ADOPTING IN FULL THE FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS (Doc. No. 91) 17 18 After Cyrus Ayers committed suicide while in custody, his child, E.M. and his mother, Dana 19 Smithee (collectively, “plaintiffs”), filed this lawsuit. They allege Ayers was not provided proper 20 medical care during his incarceration at the California Correctional Institution in Tehachapi and this 21 resulted in his death. In their fourth amended complaint, plaintiffs claim that Defendant Litt-Stoner, 22 Chief Executive Officer for Health Care Services at CCI, Defendant Narayan, Chief Psychiatrist at 23 CCI, and Defendants Seymour and Celosse, psychologists at CCI, are liable for Ayers’ death. (Doc. 24 No. 65.) 25 On January 30, 2020, Defendants Litt-Stoner, Narayan, Seymour, and Celosse moved to 26 dismiss this action. (Doc. Nos. 66, 67.) The court dismissed Defendants Narayan, Seymour, and Litt- 27 Stoner from the action, and denied the motion to dismiss with respect to plaintiffs’ survival claim 28 against Celosse based on the asserted violation of Ayers’ Eighth Amendment rights and plaintiffs’ 1 1 Fourteenth Amendment claim. (Doc. No. 88.) The court also dismissed with leave to amend 2 plaintiffs’ wrongful death claims against defendant Celosse. (Id.) 3 On September 17, 2020, plaintiffs filed a notice of election not to amend the fourth amended 4 complaint and to proceed only on their survival claim against Celosse based on Ayers’ Eighth 5 Amendment Rights and their Fourteenth Amendment claim. (Doc. No. 90 at 2.) On September 21, 6 2020, the magistrate judge issued findings and recommendation recommending dismissal of certain 7 claims, providing the plaintiffs fourteen days to file any objections to the recommendation. (Doc. No. 8 91.) In addition, plaintiffs were “advised that failure to file objections within the specified time may 9 waive the right to appeal the District Court’s order.” (Doc. No. 91 at 2, citing Martinez v. Ylst, 951 10 F.2d 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).) To date, no 11 objections have been filed and the time period for doing so has expired. 12 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United 13 School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this court conducted a de novo review of the case. 14 Having carefully reviewed the file, the court finds the findings and recommendations are supported by 15 the record and proper analysis. 16 Accordingly, the Court ORDERS: 17 1. The findings and recommendations dated September 21, 2020 (Doc. No. 91) are ADOPTED IN FULL; 18 19 2. Plaintiffs’ wrongful death claims against Defendant Celosse are DISMISSED; and 20 3. Defendant Celosse is required to file an answer within SIXTY DAYS of the date of service of this order. 21 22 23 24 IT IS SO ORDERED. Dated: October 16, 2020 UNITED STATES DISTRICT JUDGE 25 26 27 28 2

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