(PC) Fahie v. Mercy Hospital et al, No. 1:2009cv01024 - Document 28 (E.D. Cal. 2011)

Court Description: ORDER Adopting FINDINGS AND RECOMMENDATIONS And Dismissing Action For Failure To State A Claim (Doc. 26 ), Dismissal Counts As Strike Pursuant To 28 U.S.C 1915(g), signed by District Judge Lawrence J. O'Neill on 2/1/2011. CASE CLOSED.(Fahrney, E)

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(PC) Fahie v. Mercy Hospital et al Doc. 28 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ANTONIO FAHIE, 9 10 11 12 13 CASE NO. 1:09-CV-01024-LJO-DLB PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING ACTION FOR FAILURE TO STATE A CLAIM (DOC. 26) v. MERCY HOSPITAL, et al., DISMISSAL COUNTS AS STRIKE PURSUANT TO 28 U.S.C. § 1915(G) Defendants. / 14 15 Plaintiff Antonio Fahie (“Plaintiff”) is a California state prisoner proceeding pro se in this 16 civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 17 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 18 On December 3, 2010, the Magistrate Judge filed a Findings and Recommendations herein 19 which was served on Plaintiff and which contained notice to Plaintiff that any objection to the 20 Findings and Recommendations was to be filed within thirty days. Doc. 26. Plaintiff filed an 21 Objection to the Findings and Recommendations on December 16, 2010. Doc. 27. 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de 23 novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and 24 Recommendations to be supported by the record and by proper analysis. 25 Plaintiff contends that Defendants Rashidi and Shuie violated Plaintiff’s Eighth Amendment 26 rights. Objection, Doc. 27. First, these claims were dismissed by a previous order. See Doc. 18. 27 Second, Plaintiff still fails to state a claim. Plaintiff alleges only that Defendants Rashidi and Shuie 28 performed an incorrect surgery, and Defendant Rashidi did not perform corrective surgery until two 1 Dockets.Justia.com 1 weeks later. These allegations continue to fail to state a cognizable Eighth Amendment claim. 2 Plaintiff alleges insufficient facts to demonstrate that Defendants Rashidi or Shuie knew of and 3 disregarded an excessive risk to Plaintiff’s health. Farmer v. Brennan, 511 U.S. 825, 834, 837 4 (1994). Plaintiff’s allegations amount at most to negligence, which is not a cognizable Eighth 5 Amendment claim. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2006). Plaintiff failed to state 6 a cognizable claim against any Defendants. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The Findings and Recommendations, filed December 3, 2010, is adopted in full; 9 2. This action is dismissed for failure to state a claim upon which relief can be granted; 10 and 11 3. This dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). 12 13 IT IS SO ORDERED. 14 Dated: b9ed48 February 1, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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