(PC) Smith v. Goss, et al., No. 1:2016cv01356 - Document 18 (E.D. Cal. 2018)
Court Description: ORDER ADOPTING 16 FINDINGS AND RECOMMENDATIONS regarding Dismissal of Certain Claims and Defendants and to Sever Certain Claims; ORDER DIRECTING Clerk of Court to Open Three (3) New Actions; ORDER DIRECTING Plaintiff to Submit Filing Fee or Application to proceed In Forma Pauperis as to each new action, signed by Chief Judge Lawrence J. O'Neill on 06/18/18. (Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND TO SEVER CERTAIN CLAIMS Defendants. 12 (ECF No. 16) v. 13 14 Case No. 1:16-cv-01356-LJO-BAM (PC) GOSS, et al., 15 16 ORDER DIRECTING CLERK OF COURT TO OPEN THREE (3) NEW ACTIONS 17 19 ORDER DIRECTING PLAINTIFF TO SUBMIT FILING FEE OR APPLICATION TO PROCEED IN FORMA PAUPERIS AS TO EACH NEW ACTION 20 THIRTY (30) DAY DEADLINE 18 21 22 Plaintiff Lawrence Christopher Smith (“Plaintiff”) is a state prisoner proceeding pro se 23 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was 24 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 25 302. 26 On May 23, 2018, the assigned Magistrate Judge issued findings and recommendations 27 recommending that: (1) this action proceed on Plaintiff’s first amended complaint only as to the 28 excessive force claim against Defendants Sotelo, P. Chanelo, D. Wattree, K. Hunt, L. Castro, A. 1 1 Gonzalez, E. Ramirez, and R. Rodriguez, on March 13, 2013; (2) the Court sever the misjoined 2 claims, into three separate cases and such cases be opened, for excessive force for the incidents 3 of: September 9, 2013 against Defendant D. Knowlton; November 15, 2013 against Defendants 4 E. Weiss, O. Hurtado, and F. Zavleta; and February 6, 2014 against Defendants D. Gibbs and D. 5 Hardy; (3) Plaintiff’s improperly joined claims of February 4, 2015, February 25, 2015, and 6 September 2, 2015 be dismissed without prejudice to re-filing; and (4) the remaining claims and 7 defendants be dismissed for failure to state a cognizable claim. (ECF No. 16.) Those findings 8 and recommendations were served on Plaintiff and contained notice that any objections thereto 9 were to be filed within fourteen (14) days after service. (Id. at 19.) Plaintiff timely filed 10 objections on June 15, 2018. (ECF No. 17). 11 In his objections, Plaintiff argues that all of his claims should be allowed to proceed in one 12 action due to a vast, overarching conspiracy by officers at multiple institutions to retaliate against 13 him for exercising his right to file grievances and law suits. Plaintiff further contends that, if the 14 Court finds that he has failed to sufficiently allege the existence of such conspiracy, that he be 15 permitted to file a second amended complaint in this action. None of Plaintiff’s objections provide a legal basis on which to question the Magistrate 16 17 Judge’s findings and recommendations. As Plaintiff has been informed, he must set forth 18 sufficient factual allegations demonstrating that the defendants each shared the common objective 19 of a conspiracy, and may not merely set forth conclusory allegations that a vast conspiracy exists. 20 Plaintiff was provided with the relevant legal standards and an opportunity to amend, but has 21 been unable to cure the identified deficiencies in his first two complaints. Further leave to amend 22 is not warranted. Plaintiff’s remaining arguments are unpersuasive. 23 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a 24 de novo review of the case and carefully reviewed the entire file, including Plaintiff’s objections. 25 The Court concludes that the Magistrate Judge’s findings and recommendations are supported by 26 the record and by proper analysis. 27 /// 28 /// 2 1 2 3 4 Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations issued on May 23, 2018, (ECF No. 16), are adopted in full; 2. This action shall proceed on Plaintiff’s first amended complaint, filed July 14, 2017, (ECF 5 No. 12), only as to the claim against Defendants Sotelo, P. Chanelo, D. Wattree, K. Hunt, 6 L. Castro, A. Gonzalez, E. Ramirez, and R. Rodriguez, at Kern Valley State Prison, for 7 excessive force in violation of the Eighth Amendment for the incident on March 13, 2013; 8 3. Pursuant to Federal Rule of Civil Procedure 21, the Court severs the misjoined claims into 9 10 11 12 13 14 15 16 17 18 19 20 three separate cases; 4. The Clerk of the Court is directed to assign separate case numbers to each of the following claims: a. Excessive force for the incident of September 9, 2013, against Defendant D. Knowlton, of California Correctional Institution (“CCI”) at Tehachapi; b. Excessive force for the incident of November 15, 2013, against Defendants E. Weiss, O. Hurtado, and F. Zavleta, of CCI at Tehachapi; and c. Excessive force for the incident of February 6, 2014, against Defendants D. Gibbs and D. Hardy, of CCI at Tehachapi; 5. The Clerk of the Court is directed to issue and serve by mail new case documents to Plaintiff indicating each of the newly assigned case numbers; 6. The Clerk of the Court is directed to file a copy of Plaintiff’s First Amended Complaint, 21 (ECF No. 12), and a copy of this order in each newly opened case and shall directly assign 22 each of the three new cases to the same District Judge and Magistrate Judge as in case 23 1:16-cv-01356-LJO-BAM (PC); 24 7. As to each new case number, within thirty (30) days from the date of service of this 25 order, Plaintiff will be required to file a $400.00 filing fee or file a motion for leave to 26 proceed in forma pauperis; 27 8. Plaintiff’s excessive force claims arising from incidents of February 4, 2015; February 25, 28 2015; and September 2, 2015 are dismissed without prejudice because Plaintiff is not 3 1 time-barred from alleging these claims in a new action; 2 3 a. Plaintiff should not delay in filing new cases regarding these incidents; 9. All other defendants and claims, including for sexual assault in violation of the Eighth 4 Amendment, deliberate medical indifference in violation of the Eighth Amendment, 5 retaliation in violation of the First Amendment, violation of Due Process (including false 6 RVRs, investigative employee, placement in an involuntary mental health program), 7 denial of access to court, conspiracy, and confiscation of property, are dismissed, with 8 prejudice, for failure to state a cognizable claim; and 9 10 10. This action is referred back to the assigned Magistrate Judge for further proceedings consistent with this order. 11 12 13 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ June 18, 2018 UNITED STATES CHIEF DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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