(PC) Sharpe v. Sherman, et al.

Filing 180

ORDER ADOPTING 159 Findings and Recommendations signed by District Judge Kirk E. Sherriff on 07/05/2024. (Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ADAM SHARPE, 10 Plaintiff, 11 v. 12 C. CRYER, et al., 13 No. 1:19-cv-00711-KES-EPG (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Docs. 149, 159) Defendants. 14 15 16 Plaintiff Adam Sharpe is a state prisoner proceeding pro se and in forma pauperis in this 17 civil rights action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 18 magistrate judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. 19 On October 18, 2023, the assigned magistrate judge issued findings and 20 recommendations, recommending that plaintiff’s motion for leave to file a second amended 21 complaint, Doc. 149, be denied and that plaintiff not be allowed to add deliberate indifference and 22 negligence claims against six new defendants: five outside medical providers and one new prison 23 staff defendant, K. Emmart. Doc. 159. The findings and recommendations were served on the 24 parties and contained notice that any objections were due within fourteen days. Id. Plaintiff 25 timely filed objections. Doc. 161. In plaintiff’s objections, he concedes that his allegations are 26 insufficient to state a claim against K. Emmart, but he continues to assert he should be allowed to 27 pursue claims against the five new outside medical providers. Id. at 4. Defendants filed a 28 response to plaintiff’s objections on November 15, 2023. Doc. 162. 1 1 Plaintiff argues that further amendment of the complaint is warranted by defendants’ 2 disclosure in March 2023 of emails that, defendant claims, indicate negligence or deliberate 3 indifference by the outside medical providers. See Doc. 161 at 4. However, as the magistrate 4 judge found, defendants’ May 24, 2021, motion for summary judgment notified plaintiff of the 5 potential responsibility of outside medical providers for any delay in his medical care, and 6 plaintiff’s December 2020 deposition reflects that he knew of at least some of the outside 7 providers based on his own interactions with them. Plaintiff also fails to identify a discovery 8 violation in this instance by defendants. As the magistrate judge found, it was plaintiff’s 9 responsibility to timely follow up on needed discovery and to timely seek to bring other possible 10 defendants into the litigation. See Johnson v. Mammoth Recreations, 975 F.2d 604, 609-10 (9th 11 Cir. 1992) (once defendant notifies plaintiff that non-parties were at fault it becomes plaintiff’s 12 duty to prosecute case against those defendants). Plaintiff’s objections are not persuasive and do 13 not identify any error in the magistrate judge’s findings and recommendations. 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1), this court has conducted a de 15 novo review of the case. Having carefully reviewed the file, including plaintiff’s objections, the 16 court concludes the findings and recommendations are supported by the record and proper 17 analysis. 18 Accordingly, 19 1. 20 21 ADOPTED IN FULL. 2. 22 23 The findings and recommendations issued on October 18, 2023, Doc. 159, are Plaintiff’s motion for leave to file a second amended complaint, Doc. 149, is DENIED. 3. This matter is referred back to the magistrate judge for further proceedings. 24 25 26 27 IT IS SO ORDERED. Dated: July 5, 2024 UNITED STATES DISTRICT JUDGE 28 2

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