Lyons v. Folsom Mercy Hospital

Filing 24

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 9/21/2011 ORDERING that plaintiff's 21 motion filed September 16, 2011 is DENIED. It is recommending that dfts Folsom Police Department and Folsom Mercy Hospital be dismissed from this action; referred to Judge Garland E. Burrell. Objections due within 21 days after being served with these findings and recommendations. (Duong, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BART LYONS,

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Plaintiff,
vs.
FOLSOM MERCY HOSPITAL, et al.,
Defendants.

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No. 2:11-cv-0268 GEB KJN P

ORDER and
FINDINGS AND RECOMMENDATIONS

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Pursuant to this court’s screening of plaintiff’s Amended Complaint as required

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by 28 U.S.C. § 1915A(a), the court found that the Amended Complaint states potentially

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cognizable claims against defendants Browning, Lang and Lewis, but did not state a claim

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against defendants Folsom Police Department and Folsom Mercy Hospital. (Dkt. No. 14.) The

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court gave plaintiff the option of proceeding on his Amended Complaint, or filing a further

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amended complaint that again attempted to state cognizable claim against defendants Folsom

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Police Department and Folsom Mercy Hospital. Plaintiff chose to proceed on his Amended

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Complaint against defendants Browning, Lang and Lewis, effectively choosing to terminate this

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action against defendants Folsom Police Department and Folsom Mercy Hospital. This court

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therefore recommends that defendants Folsom Police Department and Folsom Mercy Hospital be

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dismissed from this action.
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One additional matter requires the court’s attention. In a motion filed September

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16, 2011, plaintiff seeks to expedite the discovery process (he seeks a copy of the video/audio

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tape which plaintiff alleges was illegally recorded by defendants, and seeks a list of the other

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individuals or entities who have copies of the tape), and, further, suggests that this case be

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referred to mediation. (Dkt. No. 21.) Both matters are prematurely requested. Defendants have

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not yet been served process in this action, and hence have not responded to the Amended

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Complaint; nor have the parties commenced the discovery process in this action.

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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that
plaintiff’s motion filed September 16, 2011 (Dkt. No. 21) is denied.
Additionally, IT IS HEREBY RECOMMENDED that defendants Folsom Police
Department and Folsom Mercy Hospital be dismissed from this action.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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DATED: September 21, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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lyon0268.14option.fr.kjn

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