Johnson v. Sisto et al

Filing 142

ORDER adopting in full 133 FINDINGS AND RECOMMENDATIONS, signed by Judge Kimberly J. Mueller on 9/26/12. Defendant Noriega's 125 motion to dismiss is granted in part, and denied in part. Defendant Noriega is ordered to file an answer within 21 days from the date of this order. (Kastilahn, A)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LACEDRIC W. JOHNSON, Plaintiff, 12 13 14 No. 2:08-cv-1609 KJM KJN P vs. D.K. SISTO, Warden, et al., Defendants. 15 ORDER / 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 18 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 19 Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 8, 2012, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within twenty-one days. Plaintiff has filed 23 objections to the findings and recommendations.1 24 1 25 26 Plaintiff’s objections were due on or before July 25, 2012, and his objections were handed to prison authorities for mailing on July 20, 2012. Thus, under the mailbox rule, plaintiff’s objections were timely filed. Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (holding that “the Houston mailbox rule applies to § 1983 complaints filed by pro se prisoners”), 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 2 304, this court has conducted a de novo review of this case. Having careful reviewed the file, the 3 court finds the findings and recommendations to be supported by the record and by the proper 4 analysis.2 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The findings and recommendations filed May 8, 2012, are adopted in full. 7 2. Defendant Noriega’s January 27, 2012 motion to dismiss is granted in part, 8 and denied in part as follows: 9 10 A. Defendant Noriega’s motion to dismiss plaintiff’s claim that defendant Noriega was deliberately indifferent to the blood in plaintiff’s stool is granted; and 11 B. Defendant Noriega’s motion to dismiss plaintiff’s claim that defendant 12 Noriega was deliberately indifferent to plaintiff’s serious medical needs during the CSW is 13 denied. 14 3. Defendant Noriega is ordered to file an answer within twenty-one days from 15 the date of this order. 16 DATED: September 26, 2012. 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 quoting Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities). 2 22 23 24 25 26 In his objections, plaintiff claims that defendant Noriega is also liable under a state law theory of negligence. (Dkt. No. 140 at 3.) However, plaintiff did not plead state law claims in his second amended complaint. (Dkt. No. 23.) Thus, the court cannot invoke supplemental jurisdiction over plaintiff’s newly-pled allegations. Fed. R. Civ. P. 15(a)(1) (plaintiff may amend his pleading once as a matter of course). See also September 10, 2012 order. (Dkt. No. 141.) In addition, plaintiff suggests he has a claim against Nurse Deur for failing to summon assistance while plaintiff was in CWS and against D.K. Sisto for authorizing four-point immobilization during CWS isolation. Again, plaintiff’s attempt to amend his complaint or revive claims the magistrate judge has earlier found unavailing is inappropriate as part of his objections. 2

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