(PC) Mundo v. Taylor, et al., No. 1:2015cv01681 - Document 46 (E.D. Cal. 2017)

Court Description: ORDER DECLINING TO ADOPT 42 FINDINGS AND RECOMMENDATIONS and ORDER REFERRING MATTER Back to the Assigned Magistrate Judge for Further Proceedings Consistent With This Order signed by District Judge Dale A. Drozd on 7/6/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN W. MUNDO, 12 Plaintiff, 13 14 15 v. No. 1:15-cv-01681-DAD-GSA ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS A. TAYLOR et al., (Doc. No. 42) Defendants. 16 17 18 Plaintiff Jonathan W. Mundo is a prisoner proceeding pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On June 15, 2016, plaintiff filed the fifth amended complaint in this action. (Doc. No. 22 32.) On March 8, 2017, the assigned magistrate judge screened plaintiff’s fifth amended 23 complaint and issued findings and recommendations recommending that (1) plaintiff’s claims 24 against defendant Taylor be dismissed without leave to amend; and (2) plaintiff’s claims against 25 defendants Salgado, Arias, and Raybon be transferred to the U.S. District Court for the Southern 26 District of California. (Doc. No. 42.) The findings and recommendations were served on 27 plaintiff and contained notice that any objections thereto be filed within thirty days. (Id.) On 28 March 23, 2017, plaintiff filed objections to the findings and recommendations. (Doc. No. 45.) 1 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 2 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 3 including plaintiff’s objections, the court declines to adopt the March 8, 2017 findings and 4 recommendations. Plaintiff’s fifth amended complaint alleges substantially identical facts as those presented 5 6 in his fourth amended complaint. (Compare Doc. No. 32, with Doc. No. 26.) In screening 7 plaintiff’s fourth amended complaint, the then-assigned magistrate judge concluded that plaintiff 8 pled facts sufficient to state an Eighth Amendment claim against defendants Taylor, Salgado, 9 Arias, and Raybon. (Doc. No. 29 at 5–6.) Moreover, the then-assigned magistrate judge 10 concluded that plaintiff failed to allege compliance with the exhaustion requirements of 11 California’s Government Claims Act and dismissed plaintiff’s negligence claim with leave to 12 amend. (Id. at 6–7.) Having reviewed plaintiff’s fifth amended complaint, this court agrees with the magistrate 13 14 judge’s prior conclusion of May 18, 2016, with respect to plaintiff’s claims under the Eighth 15 Amendment. Specifically, plaintiff alleges that defendant Taylor had knowledge of plaintiff’s 16 relatively safe assignment to A-Yard at Pleasant Valley State Prison (“PVSP”). Despite this 17 knowledge, defendant Taylor allegedly endorsed transfer of plaintiff to Centinela State Prison 18 (“CSP”), citing the same underlying safety concerns that resulted in plaintiff’s reassignment to A- 19 Yard. Moreover, plaintiff alleges that defendants Salgado, Arias, and Raybon were aware of and 20 nevertheless ignored information regarding the location of plaintiff’s enemies listed in offender 21 separation alerts and in his file, when they authorized his stay at CSP. These facts, if true, are 22 sufficient to give rise to a plausible inference that defendants were deliberately indifferent to 23 conditions posing a substantial risk of serious harm to plaintiff. In addition, these same facts 24 support a claim of negligence under California law. In his fifth amended complaint plaintiff has 25 alleged that he filed a claim with the California Victim Compensation and Government Claims 26 Board, and that the Board rejected the substance of that claim on April 21, 2016.1 27 28 1 The fifth amended complaint does note, however, that the Board also denied plaintiff’s application for leave to present a late claim. (See Doc. No. 32 ¶ 32.) 2 1 In short, the undersigned concludes that the allegations of plaintiff’s fifth amended 2 complaint are sufficient to support both an Eighth Amendment claims and a negligence claim 3 against all defendants. 4 For the reasons set forth above, 5 1. The court declines to adopt the March 8, 2017 findings and recommendations (Doc. 6 7 No. 42); 2. Plaintiff shall proceed on his fifth amended complaint against all defendants on (a) his 8 claim brought pursuant to 42 U.S.C. § 1983 for violation of the Eighth Amendment; 9 and (b) his negligence claim under state law; and 10 3. This matter is referred back to the assigned magistrate judge for further proceedings 11 12 13 consistent with this order. IT IS SO ORDERED. Dated: July 6, 2017 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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