Merriman v. Lizarraga et al

Filing 18

ORDER signed by District Judge Morrison C. England, Jr on 3/26/18 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 3/8/18 15 are ADOPTED in full; Plaintiff's third claim against defendants Lizarraga, Allison, Worrell, Telander, and Sullivan is DISMISSED from this action without prejudice; and This action shall proceed on Plaintiff's remaining claims. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOMINIQUE MERRIMAN,

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No. 2:17-cv-1701 MCE KJN P

Plaintiff,
v.

ORDER

JOE LIZARRAGA, et al.,
Defendant.

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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 pursuant to

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

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On March 8, 2018, the magistrate judge filed findings and recommendations herein which

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were served on plaintiff and which contained notice to plaintiff that any objections to the findings

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and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the

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findings and recommendations.

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Plaintiff objects that his claims against defendants Lizarraga, Allison, Worrell, Telander,

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and Sullivan were dismissed as too vague, and argues that he does not allege they were

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deliberately indifferent due to their supervisory positions. Plaintiff explains that the Court’s last

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screening order focused on improper joinder, rather than plaintiff’s policy claims, and thus he did

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not “drastically change, amend or withdraw” such claims. ECF No. 16 at 3.
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However, despite such objections, the Magistrate Judge also found that plaintiff failed to

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allege sufficient facts to demonstrate the existence of an informal policy, and that plaintiff’s

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allegations concerning such informal policy fail to demonstrate that such challenge is properly

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joined to plaintiff’s Eighth Amendment claims against the remaining defendants, which are based

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on the discrete events of July 12 and 13, 2017. ECF No. 15 at 3-4. In his objections, plaintiff

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wholly fails to address the issue of whether such policy claims are properly joined with plaintiff’s

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Eighth Amendment claims against the remaining defendants. Plaintiff was previously advised as

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to proper joinder under Rule 20(a)(2) of the Federal Rules of Civil Procedure. ECF No. 12 at 6-7

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& n.7. Thus, plaintiff’s objections are overruled because the dismissal of plaintiff’s third claim is

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without prejudice to plaintiff raising such challenge in a separate civil rights action.

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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. Having carefully reviewed the entire file, the

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Court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed March 8, 2018 (ECF No. 15), are ADOPTED

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in full;
2. Plaintiff’s third claim against defendants Lizarraga, Allison, Worrell, Telander, and
Sullivan is DISMISSED from this action without prejudice; and

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3. This action shall proceed on Plaintiff’s remaining claims.

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IT IS SO ORDERED.

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Dated: March 26, 2018

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