(PC) Johnson v. Cavagnaro et al, No. 1:2009cv00742 - Document 22 (E.D. Cal. 2010)

Court Description: ORDER Adopting Findings and Recommendations 17 ; ORDER Dismissing Conditions of Confinement Claim, signed by Chief Judge Anthony W. Ishii on 11/13/2010. (Verduzco, M)
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(PC) Johnson v. Cavagnaro et al Doc. 22 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DERRICK LANE JOHNSON, 10 Plaintiff, 11 12 13 CASE NO. 1:09-cv-00742-AWI-SKO PC ORDER REGARDING RECOMMENDATIONS FINDINGS AND v. ORDER DISMISSING CONDITIONS CONFINEMENT CLAIM S. CAVAGNARO, et al., Defendants. OF (Doc. 17) / 14 15 Plaintiff Derrick Lane Johnson (“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. The matter was referred to a United 17 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 18 On July 20, 2010, the Magistrate Judge ordered that this action would proceed on Plaintiff’s 19 Eighth Amendment claim against Defendants for their alleged use or mechanical restraints, plastic 20 restraints, and duct tape for three days, which caused Plaintiff pain and suffering. The Magistrate 21 Judge issued a Findings and Recommendations that recommended Plaintiff’s Eighth Amendment 22 claim based on the conditions of the holding cell, including the lack of water, toilet facilities, and 23 blankets, be dismissed from this action for failing to state a claim upon which relief can be granted. 24 (Doc. #17.) The Findings and Recommendations were served on Plaintiff and contained notice to 25 Plaintiff that any objections to the Findings and Recommendations were to be filed within thirty (30) 26 days of the date on which the Findings and Recommendations were served. Plaintiff has not filed 27 objections to the Findings and Recommendations. 28 1 Dockets.Justia.com 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 305, this Court 2 has conducted a de novo review of this case. A review of the complaint indicates that the factual 3 basis of Plaintiff’s Eighth Amendment claim is Defendants’ alleged use of mechanical restraints, 4 plastic restraints, and duct tape for three days. On this basis, the court agrees1 that this action should 5 proceed on this Eighth Amendment claim and not on any potential claims arising from the holding 6 cell’s conditions. 7 Accordingly, the Court HEREBY ORDERS that: 8 1. The July 20, 2010 Findings and Recommendations’ conclusion are ADOPTED; 9 2. Plaintiff’s Eighth Amendment claims based on the conditions of the holding cell are 10 11 DISMISSED; and 3. This action shall proceed on Plaintiff’s claims against Cavagnaro, Lane, and Does 1- 12 6 for excessive force in violation of the Eighth Amendment for their use of 13 mechanical restraints, plastic restraints, and duct tape on Plaintiff for three days. 14 IT IS SO ORDERED. 15 16 Dated: 0m8i78 November 13, 2010 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 1 The court declines to adopt the Findings and Recommendations to the extent the Findings and Recommendations imply that an actual serious injury from unconstitutional prison conditions is necessary for an Eighth Amendment claim. 2