McCurdy v. California Department of Corrections and Rehabilitation et al

Filing 42

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/08/18 RECOMMENDING that defendant's motion for a stay 26 be denied. Motion to Stay 26 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES C. MCCURDY,

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No. 2:17-cv-1736 TLN CKD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECITONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. The remaining defendant, Randy Thomas, is a Correctional

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Officer at the California Medical Facility. Plaintiff’s remaining claims arise under the Eighth

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Amendment and are for denial of medical care and excessive force. The events which form the

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basis of plaintiff’s claims occurred August 18, 2015.

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Defendant has filed a motion asking that this action by stayed. He asserts plaintiff has

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been charged criminally with assault for actions he took during the August 18, 2015 incidents

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with defendant. Defendant claims that if plaintiff is convicted on that charge, the claims in this

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case will be barred by Heck v. Humphrey, 512 U.S. 477 (1994), in which the Supreme Court

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found that a prisoner cannot proceed on a claim for damages if a favorable outcome on that claim

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would imply the invalidity of his conviction. Id. at 487. Plaintiff opposes the motion.
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A conviction for assault does not necessarily preclude a finding that, during the same

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series of events, the criminal defendant was also subjected to excessive force or denial of medical

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care in violation of the Eighth Amendment. Furthermore, defendant fails to point to specific facts

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suggesting that if plaintiff were convicted of the pending assault charge, plaintiff’s success on

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either remaining Eighth Amendment claim would imply the invalidity of his conviction. For

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these reasons, and because plaintiff prefers to proceed with this action, the court will recommend

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that defendant’s motion for a stay be denied.

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Accordingly, IT IS HEREBY RECOMMENDED that defendant’s motion for a stay (ECF
No. 26) be denied.

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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, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 8, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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mccu1736.mfs

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