Anderson v. California Medical Facility - Solano

Filing 38

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/20/2017 ORDERING 34 "Third Amended Complaint" is stricken; DIRECTING Plaintiff to submit completed Notice of Submission of Documents with service documents within 30 days from the date of this order. Service is appropriate for G. Hernandez and Mendoza. Clerk to send plaintiff: 1 Summons, 2 USM-285 Forms with instruction sheet, and 1 copy of the 37 Third Amended Complaint filed on 1/1 7/2017. Also, RECOMMENDING that all defendants other than defendants Hernandez and Mendoza and all claims other than those arising under the 1st and 8th Amendments described in this Order be dismissed. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JULIUS ANDERSON,

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Plaintiff,

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No. 2:16-cv-0018 TLN CKD P

v.

ORDER AND

CALIFORNIA MEDICAL FACILTIY,
SOLANO, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. On October 28, 2016, plaintiff was given leave to file a third

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amended complaint. Since that date, plaintiff has filed two documents titled “third amended

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complaint”: one on December 6, 2016 and one on January 17, 2017. Good cause appearing, this

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action will proceed on the later-filed complaint and the earlier one will be stricken.
Plaintiff’s January 17, 2017 third amended complaint is before the court for screening

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under 28 U.S.C. § 1915A(a). The court has conducted the required screening and finds that

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plaintiff may proceed with the following claims:
1. Claim arising under the Eighth Amendment for excessive force against defendant

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Hernandez as described in section V, paragraph 7 of plaintiff’s third amended complaint (ECF

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No. 37 at 8);

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2. Claim for retaliating against plaintiff for the exercise of his First Amendment rights

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against defendant Mendoza as described in section V, paragraphs 10-11, of the third amended

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complaint (Id. at 8-9); and

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3. Claim arising under the Eighth Amendment for denial of adequate medical care against

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defendant Mendoza as described in section V, paragraph 10,of plaintiff’s third amended

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complaint (Id.) .
In all other respects, plaintiff’s third amended complaint fails to state a claim upon which

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relief can be granted. Of note, plaintiff’s claims against the California Medical Facility are barred

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by the Eleventh Amendment. Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam). Further,

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although plaintiff asserts claims arising under California law, he fails to plead compliance with

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the California Government Claims Act. See Mangold v. California Pub. Utils. Comm’n, 67 F.3d

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1470, 1477 (9th Cir. 1995). Plaintiff does not state a claim upon which relief can be granted

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against defendant Harris in section V, paragraph 6 of plaintiff’s third amended complaint (ECF

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No. 37 at 7) as he does not provide facts suggesting he was subjected to cruel and unusual

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punishment, nor does he identify conduct engaged in by him protected under the First

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Amendment which caused Harris to retaliate.1

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The “third amended complaint” filed by plaintiff on December 6, 2016 is stricken.

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2. Service is appropriate for defendants Hernandez and Mendoza.

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3. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an

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instruction sheet and a copy of the third amended complaint (ECF No. 37).

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Submission of Documents and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

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In paragraph 6, plaintiff also asserts defendant Harris violated his rights under the Health
Insurance Portability and Accountability Act (HIPPA), but he does not identify a claim arising
under HIPPA in the section of his third amended complaint where he identifies his causes of
action. In any case, HIPPA does not provide for a private right of action. See Webb v. Smart
Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007).
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b. One completed summons;

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c. One completed USM-285 form for each defendant listed in number 2 above;

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and

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d. Three copies of the endorsed third amended complaint (ECF No. 37).

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5. Plaintiff need not attempt service of process himself and need not request waiver of

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service. Upon receipt of the above-described documents, the court will direct the United States

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Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4

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without payment of costs.

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IT IS HEREBY RECOMMENDED that all defendants other than defendants Hernandez

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and Mendoza and all claims other than those arising under the First and Eighth Amendments

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described above be dismissed.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 Findings and

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

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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Dated: July 20, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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ande0018.1(3)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JULIUS ANDERSON,
Plaintiff,

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No. 2:16-cv-0018 TLN CKD P

v.

NOTICE OF SUBMISSION

CALIFORNIA MEDICAL FACILITY,
SOLANO, et al.,

OF DOCUMENTS

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Defendants.
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Plaintiff hereby submits the following documents in compliance with the court's order
filed _____________________ :
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completed summons form

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two completed USM-285 forms

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copies of the ___________________

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Third Amended Complaint
DATED:

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________________________________

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Plaintiff

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