Jayne v. Van Buskirk, et al.
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/16/2011 RECOMMENDING that those claims raised in plaintiff's amended complaint found not potentially colorable in the separately issued order be dismissed. Referred to Judge Garland E. Burrell, Jr.; Objections due within 21 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MIKE JAYNE,
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Plaintiff,
No. 2: 11-cv-1448 GEB KJN P
vs.
DONALD VAN BUSKIRK, et al.,
Defendants.
FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action
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pursuant to 42 U.S.C. § 1983. The undersigned has separately issued a lengthy order addressing
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the merits of plaintiff’s amended complaint filed June 28, 2011. In this order, the undersigned
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found that the following claims stated potentially colorable claims for relief: 1) cell searches
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conducted allegedly based on retaliation and to harass plaintiff against defendants Buskirk,
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Champagne, Page, Woellert; 2) defendant Woellert allegedly refused to allow plaintiff to wash
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off pepper spray for several hours; 3) alleged denial of outdoor exercise while in ad seg by
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defendants Buskirk and Solus; 4) conditions of ad seg were allegedly unconstitutional against
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defendants Buskirk and Solus: 5) alleged denial of medical care for sciatica against defendants
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McComb and Austin; 6) alleged denial of access to Jewish reading material and Rabbi and
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alleged denial of request to wear Star of David in violation of the First Amendment and RLUIPA
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against defendant Solus; 7) alleged denial of right to watch television in violation of the Equal
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Protection Clause against defendant Solus.
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In the separately issued order, the undersigned addressed why the remaining
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claims did not state potentially colorable claims for relief. In particular, the undersigned found
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that the following claims were not potentially colorable: 1) conspiracy claims against defendant
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Hendershot, Anderson, Mitchell, Ashmun, Ryan, Champagne and Mitchell; 2) conspiracy claims
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against defendants Solus and Ashmus based on their alleged preparation of memos; 3) conspiracy
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claims against defendants Buskirk and Champagne based on their drafting of policies; 4) alleged
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failure of defendants Hansen and Bosenko to investigate the conspiracy; 5) alleged failure of
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defendants Cierly and Skenn to conduct criminal investigation; 6) claim that defendants Page,
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Champagne and Short allegedly attempted to frame plaintiff on criminal charges and plant
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informants; 7) claim that defendant Short allegedly falsely claimed that plaintiff had a hit list; 8)
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claim that defendants Champagne, Mitchell, Buskirk and Abernathy allegedly violated the
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Federal Wiretap Act and California Penal Code sections 636(a) and 132; 9) claim that defendant
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Page used allegedly excessive force; 10) claim that defendant Church allegedly retaliated against
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plaintiff; 11) claim that defendants Solis and Champagne allegedly punished plaintiff for rules
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violations and denied plaintiff visits; 12) claim that defendant Champagne allegedly gave
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plaintiff a thin mattress; 13) claim that defendants Solus and Woellert allegedly tampered with
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plaintiff’s mail; 14) claim that defendant Solus allegedly violated the ADA by failing to provide
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rehabilitative services; 15) claim that defendants Solus and Buskirk allegedly violated plaintiff’s
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right to access the court and California Penal Code section 832.5; 16) claim that plaintiff did not
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receive dessert; 17) claim that defendant Solus allegedly kept a debt on his canteen; 17) claim
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that defendants Cierly and Skenn allegedly refused to investigate his complaints of conspiracy;
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18) claim that defendant Brown allegedly refused to investigate his complaints; 19) claim that
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defendants Campbell and Hammonds allegedly conspired to play back his attorney-client
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telephone calls; 20) all claims against defendants Abney and Bodner because plaintiff has failed
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to link them to any alleged deprivation.
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For the reasons stated in that order, the undersigned now recommends dismissal
of those claims.
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Accordingly, IT IS HEREBY RECOMMENDED that those claims raised in
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plaintiff’s amended complaint found not potentially colorable in the separately issued order be
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dismissed.
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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 twenty-
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one days after being served with these findings and recommendations, plaintiff may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: November 16, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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jayne1448.ame
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