(PC) Cromp v. Conway, No. 1:2010cv00802 - Document 35 (E.D. Cal. 2012)

Court Description: ORDER Adopting 33 FINDINGS AND RECOMMENDATIONSand GRANTING IN PART and DENYING IN PART Defendants' 25 Motion to Dismiss signed by District Judge Lawrence J. O'Neill on 2/29/2012. (Sant Agata, S)

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(PC) Cromp v. Conway Doc. 35 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JONATHAN CROMP, 10 11 12 CASE NO. 1:10-cv-00802-LJO-BAM PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN P AR T AN D D E N YING IN P AR T DEFENDANT’S MOTION TO DISMISS v. B. CONWAY, (ECF Nos. 33, 34) 13 Defendant. / 14 15 Plaintiff JONATHAN CROMP (“Plaintiff”) is a state prisoner proceeding pro se and in 16 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on 17 the complaint, filed May 10, 2010, against Defendant Conway for deliberate indifference to serious 18 medical needs in violation of the Eighth Amendment. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 7, 2012, the Magistrate Judge issued Findings and Recommendations 21 recommending that Defendant’s Motion to Dismiss be granted in part and denied in part. The parties 22 were given thirty days within which to file Objections, and Plaintiff filed an Objection on February 23 28, 2012. 24 Plaintiff objects to the Findings and Recommendations stating that the Magistrate Judge 25 incorrectly considered failure to exhaust sua sponte and requests that Defendant’s Motion to Dismiss 26 for Failure to Exhaust be dismissed with prejudice. Plaintiff misunderstands the recommendations. 27 In the Findings and Recommendations the Magistrate Judge considered Plaintiff’s inmate appeal. 28 This was not to determine if Plaintiff had exhausted his administrative remedies, but to consider 1 Dockets.Justia.com 1 whether Plaintiff was entitled to equitable tolling under the California Government Tort Claim Act 2 while he was exhausting his administrative remedies. The Magistrate Judge correctly determined 3 that the issue was more appropriately addressed in a motion for summary judgment and 4 recommended that the Motion to Dismiss State Law Claims be denied, without prejudice. 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 6 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings 7 and Recommendations to be supported by the record and by proper analysis. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The Findings and Recommendations, filed February 7, 2012, is adopted in full; 10 2. Defendant’s Motion to Dismiss, filed October 6, 2011, is DENIED IN PART and 11 GRANTED IN PART as follows: 12 a. 13 Defendant’s Motion to Dismiss Plaintiff’s Official Capacity Claim is GRANTED; 14 b. 15 Defendant’s Motion to Dismiss Plaintiff’s State Law Claims is DENIED, without prejudice; 16 2. Plaintiff’s request for declaratory relief is DISMISSED as unnecessary; 17 3. This action shall proceed on the complaint, filed May 10, 2010, against Defendant 18 Conway, in her individual capacity, for deliberate indifference in violation of the 19 Eighth Amendment and medical negligence under state law for damages; and 20 4. 21 IT IS SO ORDERED. 22 Dated: b9ed48 This action is referred back to the Magistrate Judge for further proceedings. February 29, 2012 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2

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