-SMS (PC) Farha v. Silva et al, No. 1:2006cv00755 - Document 90 (E.D. Cal. 2011)

Court Description: ORDER Adopting Findings and Recommendations 87 and Partially granting Defendants' Motion for Summary Judgment 79 , signed by Judge Oliver W. Wanger on 4/8/11. (Verduzco, M)
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-SMS (PC) Farha v. Silva et al Doc. 90 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MAUWAI FARHA, 10 CASE NO. 1:06-cv-00755-OWW-SMS PC Plaintiff, 11 v. 12 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND PARTIALLY GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT B. SILVA, et al., (ECF Nos. 79, 87) 13 Defendants. / 14 15 Plaintiff Mauwai Farha (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the 17 first amended complaint, filed April 23, 2009, against Defendants B. Silva, V. Pierce, Banks, 18 Wimbly, Williams, Riddle, and John Doe for violations of the Eighth Amendment.1 The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On September 16, 2010, Defendants Banks, Pierce, Riddle, B. Silva, Williams, and Wimbly 22 filed a motion for summary judgment. Plaintiff filed an opposition on February 3, 2011, and 23 Defendant filed a reply on February 10, 2011. On February 16, 2011, the Magistrate Judge issued 24 findings and recommendations recommending that Defendant’s motion for summary judgment be 25 granted in part and denied in part. The parties were given twenty one days in which to file objections 26 27 28 1 On September 16, 2010, an order was issued dismissing Defendant Swain from the action pursuant to Federal Rule of Civil Procedure 4(m) for lack of service. (ECF No. 78.) Plaintiff has not filed an amended complaint identifying John Doe. On March 28, 2011, an order to show cause as to why Doe Defendant should not be dismissed for failure to effect service of process was issued. 1 Dockets.Justia.com 1 and no objections have been filed. 2 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 3 de novo review of this case. Having carefully reviewed the entire file, the undersigned finds the 4 findings and recommendations to be supported by the record and by proper analysis with the 5 following limitations. The Magistrate Judge screened the complaint and found a cognizable equal 6 protection claim, which Defendants did not address in their motion for summary judgment. The 7 action will be referred back to the Magistrate Judge to re-screen the equal protection claim in light 8 of the holding in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Also, since Defendant Swain has 9 been dismissed from this action there are no claims proceeding against him. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. 12 13 The findings and recommendations, filed February 16, 2011, are adopted in full, with the modification addressed; 2. Defendant’s motion for summary adjudication is GRANTED in part and DENIED 14 in part as follows: 15 a. Defendants’ motion for summary adjudication for deliberate indifference to 16 medical needs in violation of the Eighth Amendment is GRANTED for 17 Defendants Silva, Banks, and Pierce; 18 19 b. 3. 20 21 22 Defendants’ remaining motions for summary adjudication are DENIED; Plaintiff’s excessive force claim arising from the alleged handcuffing incident is DISMISSED for failure to state a claim; 4. This action shall proceed on: a. Plaintiff’s Eighth Amendment claims against Defendants Banks and Pierce 23 for placing Plaintiff in a holding cell, ordering him to strip naked, and 24 ridiculing him; 25 b. 26 27 28 Plaintiff’s Eighth Amendment claims against Defendants Wimbly, Williams, and Riddle for use of excessive force; c. Plaintiff’s Eighth Amendment claims against Defendants Wimbly, Williams, and Riddle for deliberate indifference to Plaintiff’s medical needs during his 2 1 asthma attack; 2 d. 3 Defendants Banks, Pierce, Wimbly, Williams, and Riddle; and 4 5 Plaintiff’s Fourteenth Amendment equal protection claims against 5. This action if referred back to the Magistrate Judge for further proceedings. . 6 7 8 IT IS SO ORDERED. 9 Dated: April 8, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3