(PC) Jacobsen v. Curran et al, No. 1:2016cv01050 - Document 69 (E.D. Cal. 2018)

Court Description: ORDER Modifying Order Adopting Findings and Recommendations to Dismiss Non-Cognizable Claims 68 , signed by Chief Judge Lawrence J. O'Neill on 3/29/2018: 14-Day Deadline. (Hellings, J)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MICHAEL NEIL JACOBSEN, 9 Plaintiff, 10 v. 11 12 CASE NO. 1:16-cv-01050-AWI-MJS (PC) ORDER MODIFYING ORDER ADOPTING FINDINGS AND RECOMMENDATION TO DISMISS NON-COGNIZABLE CLAIMS OFFICER CURRAN, et al., (ECF No. 68) Defendants. 13 FOURTEEN (14) DAY DEADLINE 14 15 16 Plaintiff is a former county inmate proceeding pro se and in forma pauperis in this 17 civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on 18 Plaintiff’s first amended complaint against Defendants Curran and Gonzalez for 19 inadequate medical care in violation of the Eighth Amendment of the United States 20 Constitution. (ECF No. 11.) 21 I. 22 23 Relevant Procedural Background On March 19, 2018, the Court adopted the Magistrate Judge’s recommendation (ECF No. 43) that certain non-cognizable claims be dismissed. (ECF No. 68.) 24 Also pending before the Court are Defendants’ motions for summary judgment. 25 (ECF Nos. 35, 38.) The Court has now reviewed Plaintiff’s opposition to those motions. 26 (ECF No. 58.) Upon review, given the requirement to treat pro se parties’ pleadings 27 liberally, the Court believes that Plaintiff’s opposition should be treated as a timely 28 1 objection to the above-mentioned findings and recommendation. As such, the Court will 2 review Plaintiff’s objections de novo to determine if they raise an issue of law or fact. 3 II. Objections Raise Additional Cognizable Claim 4 Upon review, Plaintiff’s objections indicate that Plaintiff has alleged an additional 5 cognizable claim against Defendant Gonzalez. Plaintiff’s claim against Defendant 6 Gonzalez is based on Plaintiff’s allegation that Defendant Gonzalez removed Plaintiff’s 7 PIC line and discontinued Plaintiff’s antibiotics, contrary to the orders of Plaintiff’s 8 surgeon. (ECF No. 12 at 9-10.) In the operative complaint, Plaintiff alleges his PIC line 9 was removed twice. One removal was attributed to Defendant Gonzalez, but the second 10 removal was not attributed to any Defendant and was dismissed on that basis. (Id. at 11 10.) However, Plaintiff now indicates that the second removal was also conducted by 12 Defendant Gonzalez. (ECF No. 58 at 2.) 13 Accordingly, Plaintiff has alleged a cognizable claim of Eighth Amendment 14 deliberate indifference against Defendant Gonzalez based on the allegation that 15 Defendant Gonzalez twice removed Plaintiff’s PIC line contrary to the orders of his 16 surgeon. 17 III. Conclusion and Order 18 Based on the foregoing, it is HEREBY ORDERED THAT the order adopting 19 findings and recommendation to dismiss non-cognizable claims (ECF No. 68) is modified 20 to hold that Plaintiff has alleged a cognizable claim against Defendant Gonzalez based 21 on Plaintiff’s allegation that Defendant Gonzalez removed Plaintiff’s PIC line on two 22 occasions. 23 24 25 26 In light of this determination, and to the extent necessary, Defendant Gonzalez may file an amended answer within fourteen days of the date of this order. IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ March 29, 2018 UNITED STATES CHIEF DISTRICT JUDGE 27 28 2