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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LACEDRIC W. JOHNSON,
Plaintiff,

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No. 2:08-cv-1609 KJM KJN P

vs.
D.K. SISTO, Warden, et al.,
Defendants.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 8, 2012, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within twenty-one days. Plaintiff has filed

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objections to the findings and recommendations.1

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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”),
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having careful reviewed the file, the

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court finds the findings and recommendations to be supported by the record and by the proper

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analysis.2

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed May 8, 2012, are adopted in full.

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2. Defendant Noriega’s January 27, 2012 motion to dismiss is granted in part,

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and denied in part as follows:

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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

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B. Defendant Noriega’s motion to dismiss plaintiff’s claim that defendant

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Noriega was deliberately indifferent to plaintiff’s serious medical needs during the CSW is

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denied.

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3. Defendant Noriega is ordered to file an answer within twenty-one days from

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the date of this order.

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DATED: September 26, 2012.

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UNITED STATES DISTRICT JUDGE

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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).
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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.
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