James v. Price et al

Filing 31

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/9/2018 ORDERING defendant Austin shall file his response to claim III in plaintiff's 27 amended complaint within 30 days; and RECOMMENDING all defendants other than defendant Austin, and all claims other than claim III in plaintiff's amended complaint be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANNIE JAMES,

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No. 2:17-cv-1433 MCE CKD P
Plaintiff,

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v.

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J. PRICE, et al.,

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ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff, a California prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. §

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1983. On November 27, 2017, the court granted plaintiff leave to file an amended complaint.

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Plaintiff has now filed his amended complaint.

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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The court has conducted the required screening and finds that plaintiff’s amended

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complaint states a claim against defendant Austin upon which relief could be granted arising

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under the Eighth Amendment for excessive force as detailed in claim III of plaintiff’s amended

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complaint.
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As for claim I, the allegations do not amount to anything more than negligence in

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violation of California Law, and plaintiff does not plead compliance with the California Tort

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Claims Act. See State v. Superior Court, 32 Cal.4th 1234, 1239 (Cal. 2004).

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As for claim II, which concerns medical care, plaintiff fails to point to facts suggesting he

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suffered injury as a result of deliberate indifference to serious medical needs. See Estelle v.

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Gamble, 429 U.S. 97, 104-05 (1976).

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For these reasons, the court will order defendant Austin to file his response to claim III in

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plaintiff’s amended complaint and recommend that the other defendants and claims be dismissed.

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The court does not grant leave to file a second amended complaint, as the court already provided

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plaintiff one opportunity to amend, and providing a second opportunity appears futile.
In accordance with the above, IT IS HEREBY ORDERED that defendant Austin file his
response to claim III in plaintiff’s amended complaint within 30 days; and
IT IS HEREBY RECOMMENDED that all defendants other than defendant Austin, and
all claims other than claim III in plaintiff’s amended complaint be dismissed.

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These findings and recommendations are 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 objections with the

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court. Such a document should be captioned “Objections to Magistrate Judge’s 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 9, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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jame1433.1(2)

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