Bowell v. California Department of Corrections et al

Filing 82

ORDER signed by Chief District Judge Kimberly J. Mueller on 11/5/2020 ADOPTING in FULL 80 Findings and Recommendations. GRANTING 56 Motion to Dismiss, and this action is DISMISSED without prejudice. CASE CLOSED (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES BOWELL,

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No. 2:17-cv-0981 KJM KJN P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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

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On July 30, 2020, the magistrate judge filed findings and recommendations, which were

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

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and recommendations were to be filed within twenty-one days. Plaintiff filed objections to the

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findings and recommendations. Defendants did not file a reply.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Plaintiff does not contest the Magistrate

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Judge’s conclusion that the defendants violated no clearly established law. The court agrees with

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and adopts that conclusion. When, as is true here, officers “act[] in reliance on a duly-enacted
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statute or ordinance,” they are “ordinarily entitled to qualified immunity.” Tshida v. Motl, 924

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F.3d 1297, 1305 (9th Cir. 2019) (quoting Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th

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Cir. 1994)). “[L]iability may attach only where (1) the statute ‘authorizes official conduct which

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is patently violative of fundamental constitutional principles,’ or (2) the official ‘unlawfully

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enforces an ordinance in a particularly egregious manner, or in a manner which a reasonable

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officer would recognize exceeds the bounds of the ordinance.’” Id. (quoting Grossman, 33 F.3d

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at 1209–10). No allegations in the complaint could show that the tuberculosis testing

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requirements in question or the defendants’ actions satisfy either of these requirements.

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Plaintiff instead requests a stay pending his release from custody so that he can “have a

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law firm properly respond and draft [arguments on the] merits of [his] claim.” Objections at 1,

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ECF No. 81. Four factors are generally relevant when evaluating a request for a stay: (1) whether

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the party requesting a stay has made a “strong showing” of likely success on the merits,

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(2) whether a stay will prevent irreparable injury; (3) whether a stay would “substantially injure

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the other parties,” and (4) “where the public interest lies.” Nken v. Holder, 556 U.S. 428, 434

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(2009). Plaintiff has not carried his burden to show that these factors favor a stay. He has not

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made a strong showing of likely success on the merits, it is unclear whether continued

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tuberculosis tests will cause him harm, and a stay would unnecessarily delay the resolution of this

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matter.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed July 30, 2020 are adopted in full;

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2. Defendants’ motion to dismiss (ECF No. 56) is granted; and

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3. This action is dismissed without prejudice.

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DATED: November 5, 2020.

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