(PC) Tholmer v. Yates et al, No. 1:2006cv01403 - Document 26 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS, Recommending That This Action Proceed Only Against Defendants Yates, Allison, Mattingly, Hudson, and Chief Medical Officer John Doe on Plaintiff's Eighth Amendment Medical Claims, and all Other Claims and Defendants be Dismissed; Objections, if any, due in 30 Days signed by Magistrate Judge Gary S. Austin on 11/11/2009. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/15/2009. (Bradley, A)
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(PC) Tholmer v. Yates et al Doc. 26 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LIONELL THOLMER, 12 13 1:06-cv-01403-LJO-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS YATES, ALLISON, MATTINGLY, HUDSON, AND CHIEF MEDICAL OFFICER JOHN DOE ON PLAINTIFF’S EIGHTH AMENDMENT MEDICAL CLAIMS, AND ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED vs. 14 JAMES A. YATES, et al., 15 16 Defendants. 17 OBJECTIONS, IF ANY, DUE IN 30 DAYS / 18 Plaintiff Lionell Tholmer (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on the First Amended 20 Complaint filed by Plaintiff on December 5, 2006. (Doc. 11.) The First Amended Complaint names 21 John Doe (Chief Medical Officer), James A. Yates (Warden), Allison (Correctional Counselor), J. 22 Mattingly (Chief Deputy Warden), C. Hudson (Appeals Coordinator), Tom Maddox (Director of 23 CDCR), Spralding (CCI), Captain Beel, Correctional Officer (“C/O”) Cabral, C/O Jobinger, C/O Martin, 24 C/O Bruce, C/O Diaz, C/O Garcia and Lieutenant J. L. Scott as defendants, and alleges violations of Due 25 Process, First Amendment claims, claims for property deprivation, claims for an inadequate prison 26 inmate appeals process, and violation of his rights to adequate medical care under the Eighth 27 Amendment. 28 1 Dockets.Justia.com 1 The court screened Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915A and 2 found that it states cognizable claims for relief under section 1983 against defendants Chief Medical 3 Officer John Doe , James A. Yates, Allison, J. Mattingly, and C. Hudson only, for violation of Plaintiff’s 4 rights to adequate medical care under the Eighth Amendment. Erickson v. Pardus, 127 S.Ct. 2197, 2200 5 (2007); Alvarez v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008). On January 26, 2009, the court gave 6 Plaintiff two options, to either file a Second Amended Complaint, or to notify the court that he wishes 7 to proceed on the claims found cognizable by the court. On March 9, 2009, Plaintiff filed written notice 8 to the court that he wishes to proceed only on the claims found cognizable by the court. (Doc. 24.) 9 Based on the foregoing, it is HEREBY RECOMMENDED that: 10 1. This action proceed only against John Doe (Chief Medical Officer), James A. Yates 11 (Warden), Allison (Correctional Counselor), J. Mattingly (Chief Deputy Warden),and 12 C. Hudson (Appeals Coordinator), for violation of Plaintiff’s rights to adequate medical 13 care under the Eighth Amendment; 14 2. All remaining claims and defendants be dismissed from this action; 15 3. Plaintiff's claims against defendants Tom Maddox (Director of CDCR), Spralding (CCI), 16 Captain Beel, C/O Cabral, C/O Jobinger, C/O Martin, C/O Bruce, C/O Diaz, C/O Garcia 17 and Lieutenant J. L. Scott be dismissed from this action based on Plaintiff's failure to 18 state any claims upon which relief may be granted against them; 19 4. Plaintiff's claims for violation of Due Process, for violation of his rights under the First 20 Amendment, for property deprivation, and for an inadequate prison inmate appeals 21 process be dismissed based on Plaintiff’s failure to state a claim upon which relief may 22 be granted under section 1983; and 23 5. 24 The Clerk be directed to: A. 25 Beel, Cabral, Jobinger, Martin, Bruce, Diaz, Garcia, and Scott; 26 B. 27 28 Reflect on the court’s docket the dismissal of defendants Maddox, Spralding, Add to the court’s docket defendants Allison (Correctional Counselor) and John Doe (Chief Medical Officer). /// 2 1 These Findings and Recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 3 after being served with these Findings and Recommendations, Plaintiff may file written objections with 4 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 5 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 6 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 8 9 IT IS SO ORDERED. Dated: 6i0kij November 11, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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