-GBC (PC) Allen v. Rivera et al, No. 1:2005cv00146 - Document 34 (E.D. Cal. 2011)

Court Description: ORDER PARTIALLY ADOPTING FINDINGS AND RECOMMENDATIONS and DISMISS Some Claims and Allow Case to Proceed on Other Claims 32 , signed by Chief Judge Anthony W. Ishii on 5/17/11: This action is to proceed on Plaintiff's Third Amended Complaint, filed June 4, 2010, against Defendants Rivera, Quillen, Beer, Munoz, McVay, Beattles, and Does I-V; Defendants Felin, Rocha, Cano, Sheppard-Brooks, Lowden, and Martinez are DISMISSED from action; This matter is REFERRED to the Magistrate Judge for further proceedings. (Hellings, J)
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-GBC (PC) Allen v. Rivera et al Doc. 34 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CEDRIC R. ALLEN 10 11 12 Plaintiff, v. J. RIVERA , et. al., 13 Defendants. ) ) ) ) ) ) ) ) ) ) CASE NO. 1:05-cv-00146-AWI-GBC (PC) ORDER PARTIALLY ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISS SOME CLAIMS AND ALLOW CASE TO PROCEED ON OTHER CLAIMS (Doc. 32) 14 15 Plaintiff Cedric Allen (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 16 action pursuant to 42 U.S.C. § 1983. On June 4, 2010, Plaintiff filed a third amended complaint. 17 (Doc. 25).1 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 18 636(b)(1)(B) and Local Rule 302. On April 22, 2011, the Magistrate Judge filed a Findings and 19 Recommendations herein which was served on the Plaintiff and which contained notice to the 20 Plaintiff that any objections to the Findings and Recommendations were to be filed within thirty 21 days. (Doc. 32). On May 9, 2011, Plaintiff filed objections to the Findings and Recommendations. 22 (Doc. 33). 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 24 de novo review of this case. Having carefully reviewed the entire file, the Court adopts the findings 25 and recommendations in part and declines to adopt in part for the reasons set forth below. 26 Plaintiff objects to the Magistrate Judge’s recommendation to dismiss the claim against 27 1 28 Although the complaint is docketed (Doc. 25) as the second amended complaint, it is in fact the third amended complaint. 1 Dockets.Justia.com 1 Defendants Beattles and John Does IV and V for conduct involving placing a spit mask onto Plaintiff 2 and allowing the spit mask to remain on despite Plaintiff informing Defendants that he was unable 3 to breath. The Magistrate judge analyzed the claim under a deliberate indifference standard, 4 however, the Court finds that Plaintiff states a claim against Defendants Beattles, Doe IV and Doe 5 V under an excessive force analysis. Where prison officials are accused of using excessive physical 6 force, the issue is “‘whether force was applied in a good-faith effort to maintain or restore discipline, 7 or maliciously and sadistically to cause harm.’” Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quoting 8 Whitley v. Albers, 475 U.S. 312, 320-321 (1986)). Given Plaintiff’s condition after a severe beating 9 which resulted in blood saturating the mesh spit mask and his nose was clogged with mucous, 10 Plaintiff stated a claim against Defendants Beattles, Doe IV and Doe V for excessive force for 11 placing the spit mask over Plaintiff and for Defendant Beattles’ refusal to remove the spit mask after 12 Plaintiff informed Beattles that he could not breathe. 13 14 Having carefully reviewed the entire file, the Court finds the remainder of the Findings and Recommendations to be supported by the record and by proper analysis. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The Findings and Recommendations, filed April 22, 2011, is ADOPTED IN PART; 17 2. This action is to proceed on Plaintiff’s third amended complaint, filed June 4, 2010, 18 against Defendants Rivera, Quillen, Beer, Munoz, McVay, Beattles and Does I 19 through V for the use of excessive force on June 4, 2004, in violation of the Eighth 20 Amendment; 21 3. 22 23 dismissed for failure to state a claim upon which relief could be granted; 4. 24 25 Plaintiff’s claim of deliberate indifference for prematurely removing stitches is Plaintiff’s due process claim for retaining plaintiff in administrating segregation subject to periodic review is dismissed for failure to state a claim; 5. Defendants Felin, Rocha, Cano, Sheppard-Brooks, Lowden and Martinez are 26 dismissed from this action based on Plaintiff’s failure to state any claims upon which 27 relief may be granted against them; and 28 2 1 6. This matter is referred back to the Magistrate Judge for further proceedings. 2 3 IT IS SO ORDERED. 4 5 Dated: 0m8i78 May 17, 2011 CHIEF UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3