(PC) Plata v. Woodford et al, No. 1:2006cv01023 - Document 40 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action Proceed Only Against Defendants Watson, Corona, and John/Jane Doe #6, On Plaintiff's Claims for Retaliation and Failure to Protect, and All Other Claims and Defendants be Dismissed re 19 First Amended Complaint, signed by Magistrate Judge Gary S. Austin on 10/15/2010. Referred to Judge O'Neill. Objections to F&R due by 11/18/2010. (Jessen, A)

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(PC) Plata v. Woodford et al Doc. 40 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 MARCIAL PLATA, 9 1:06-cv-01023-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS WATSON, CORONA, AND JOHN/JANE DOE #6, ON PLAINTIFF’S CLAIMS FOR RETALIATION AND FAILURE TO PROTECT, AND ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED Defendants. 10 Plaintiff, OBJECTIONS, IF ANY, DUE IN 30 DAYS vs. 11 12 WOODFORD, et al., 13 14 / 15 16 Plaintiff Marcial Plata (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in this 17 civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds on the First Amended 18 Complaint filed by Plaintiff on December 10, 2008. (Doc. 19.) The Court screened Plaintiff’s First 19 Amended Complaint pursuant to 28 U.S.C. § 1915A and found that it states cognizable claims for relief 20 under § 1983 against defendants Correctional Officer (“C/O”) Watson, C/O Corona, and John/Jane Doe 21 #6 for two instances of retaliation -- on October 12, 2003 and December 19, 2003 – in violation of the 22 First Amendment, and for failure to protect Plaintiff, in violation of the Eighth Amendment. (Doc. 21.) 23 Plaintiff filed the Second Amended Complaint on April 24, 2009. (Doc. 26.) On June 4, 2010, the court 24 dismissed the Second Amended Complaint for failure to state a claim and issued an order requiring 25 Plaintiff to either file a Third Amended Complaint or notify the court of his willingness to proceed on 26 the First Amended Complaint with the claims found cognizable by the court. (Doc. 32.) On October 27 4, 2010, Plaintiff filed written notice to the court that he is willing to proceed on the First Amended 28 Complaint with the claims found cognizable by the court. (Doc. 38.) 1 Dockets.Justia.com 1 Based on the foregoing, it is HEREBY RECOMMENDED that: 2 1. This action proceed with Plaintiff’s First Amended Complaint, filed on December 10, 3 2008, only against defendants Correctional Officer (“C/O”) D. Watson, C/O E. Corona, 4 and John/Jane Doe #6 for two instances of retaliation -- on October 12, 2003 and 5 December 19, 2003 – in violation of the First Amendment, and for failure to protect 6 Plaintiff, in violation of the Eighth Amendment; 7 2. All remaining claims and defendants be dismissed from this action; 8 3. Plaintiff's due process claims, claims for an inadequate inmate appeals process, 9 supervisory liability claims, and claims for failure to properly train and supervise be 10 dismissed for failure to state a claim upon which relief may be granted under § 1983; and 11 4. Defendants California Department of Corrections Director Jeanne S. Woodford, PVSP 12 Warden James A. Yates, Chief Deputy Warden A. Malfi, Associate Warden B. J. Hill, 13 Associate Warden W. J. Juarez, Captain V. J. Quinn-Robicheaux, Lieutenant K. R. Nash, 14 Lieutenant V. Ramirez, Lieutenant J. C. Smith, Sergeant B. Cramer, Sergeant B. Torres, 15 C/O R. Juarez, C/O J. Duty, C/O J. Lopez, C/O Silva, C/O Pasillas, C/O Guerra, C/O 16 Walker, C/O Espino, C/O D. Gonzales, C/O K. Session, C/O P. Sanchez, John/Jane Does 17 #1-5, and John/Jane Does #7-35 be dismissed based on Plaintiff’s failure to state any 18 claims upon which relief may be granted against them under § 1983. 19 These Findings and Recommendations will be submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 21 after being served with these Findings and Recommendations, Plaintiff may file written objections with 22 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 23 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 24 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 IT IS SO ORDERED. 27 Dated: 6i0kij October 15, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 28 2

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