(PC)Dixon v. Harrington et al, No. 1:2013cv00165 - Document 15 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that this Action Proceed Only Against Defendants Flippo and Triesch for Inadequate Medical Care, and that all Other Claims and Defendants be Dismissed from this Action, signed by Magistrate Judge Erica P. Grosjean on 7/22/16. Objections, Due Within 20 Days. Referred to Judge Drozd. (Gonzalez, R)
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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 TRADELL M. DIXON, 7 11 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANT ARAMAS FOR FAILURE TO PROTECT PLAINTIFF, AND AGAINST DEFENDANTS FLIPPO AND TRIESCH FOR INADEQUATE MEDICAL CARE, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FROM THIS ACTION 12 OBJECTIONS, IF ANY, DUE IN 20 DAYS 8 9 10 Plaintiff, 1:13-cv-00165-DAD-EPG-PC vs. ELIZABETH S. FLIPPO, et al., Defendants. 13 14 Tradell M. Dixon (“Plaintiff”) is a former state prisoner proceeding pro se and in forma 15 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds on 16 the First Amended Complaint filed by Plaintiff on January 14, 2015. (ECF No. 9.) The First 17 Amended Complaint names as defendants Kelly Harrington, who was the Warden of KVSP at 18 the relevant time; Mauro Aramas, a correctional counselor at KVSP; Elizabeth S. Flippo, a 19 correctional officer at KVSP; and Carleen M. Triesch, a supervising registered nurse at KVSP. 20 Plaintiff asserted claims in the First Amended Complaint for (1) failure to protect Plaintiff, in 21 violation of the Eighth Amendment; (2) indifference to medical needs, in violation of the 22 Eighth Amendment; (3) unconstitutional informal customs, practices and/or policy; and (4) 23 inadequate staffing. 24 The Court screened Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. 25 § 1915A and found that it states cognizable claims against defendant Aramas for failure to 26 protect Plaintiff, and against defendants Flippo and Triesch for inadequate medical care, in 27 violation of the Eighth Amendment. (ECF No. 12.) On March 30, 2016, the Court issued an 28 order for Plaintiff to either file a Second Amended Complaint or notify the Court that he is 1 1 willing to proceed only on the claims found cognizable by the Court. (Id.) On June 20, 2016, 2 Plaintiff filed a notice informing the Court that he is willing to proceed only on the cognizable 3 claims, against defendant Aramas for failure to protect Plaintiff, and against defendants Flippo 4 and Triesch for inadequate medical care, in violation of the Eighth Amendment. (ECF No. 13.) 5 Based on the foregoing, it is HEREBY RECOMMENDED that: 6 1. This action proceed only against defendant Aramas for failure to protect 7 Plaintiff, and against defendants Flippo and Triesch for inadequate medical care, 8 in violation of the Eighth Amendment; 9 2. All remaining claims and defendants be dismissed from this action; 10 3. Plaintiff’s claims for (1) unconstitutional informal customs, practices and/or 11 policy, and (2) inadequate staffing be dismissed from this action based on 12 Plaintiff’s failure to state a claim; and 13 4. 14 Defendant Kelly Harrington be dismissed from this action based on Plaintiff’s failure to state a claim against this defendant. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 17 twenty (20) days after being served with these Findings and Recommendations, Plaintiff may 18 file written objections with the Court. The document should be captioned “Objections to 19 Magistrate Judge=s Findings and Recommendations.” Plaintiff is advised that failure to file 20 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 21 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 22 (9th Cir. 1991)). 23 24 25 IT IS SO ORDERED. Dated: July 22, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 26 27 28 2
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