(PC) Mixon, Jr. v. Tyson et al, No. 1:2016cv01868 - Document 18 (E.D. Cal. 2018)

Court Description: ORDER ADOPTING 16 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants; action shall proceed against Defendants Jiminez and Metts on Plaintiff's claim for deliberate indifference to his serious medical needs in vio lation of the Eighth Amendment; Plaintiffs requests for injunctive and declaratory relief are denied;all other claims and defendants are dismissed from this action; referred back to the magistrate judge, signed by District Judge Dale A. Drozd on 03/9/18. (Martin-Gill, S)

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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 LENDWARD ALTON MIXON, JR., 12 No. 1:16-cv-01868-DAD-BAM Plaintiff, 13 v. 14 H. TYSON, et al., 15 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS Defendants. (Doc. No. 16) 16 Plaintiff Lendward Alton Mixon, Jr. (“plaintiff”) is a state prisoner proceeding pro se and 17 18 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On December 22, 2017, the assigned magistrate judge issued findings and 22 recommendations recommending that this action proceed against defendants Jiminez and Metts 23 for deliberate indifference to plaintiff’s serious medical needs in violation of the Eighth 24 Amendment, that plaintiff’s requests for injunctive and declaratory relief be denied, and that all 25 other claims and defendants be dismissed from this action. (Doc. No. 16) The findings and 26 recommendations were served on plaintiff and contained notice that any objections thereto were 27 to be filed within fourteen (14) days after service. (Id.) Plaintiff timely filed objections which 28 were mailed on January 8, 2018, and docketed by the court on January 16, 2018. (Doc. No. 17.) 1 1 Therein, plaintiff objects to dismissal of the defendant Commissioner, but fails to point to any 2 facts alleged in his complaint showing that the Commissioner “participated in or directed the 3 violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 4 1040, 1045 (9th Cir. 1989). As explained in the magistrate judge’s findings and 5 recommendations, liability under 42 U.S.C. § 1983 may not be imposed on supervisory personnel 6 for the actions or omissions of their subordinates under the theory of respondeat superior, and 7 may only be imposed if the supervisory personnel personally violated a constitutional right. 8 (Doc. No. 16 at 4.) 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 10 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 11 objections, the court finds the findings and recommendations to be supported by the record and 12 by proper analysis. 13 Accordingly, 14 1. The findings and recommendations issued on December 22, 2017 (Doc. No. 16) 15 are adopted in full; 16 2. This action shall proceed against defendants Jiminez and Metts on plaintiff’s claim 17 for deliberate indifference to his serious medical needs in violation of the Eighth 18 Amendment; 19 3. Plaintiff’s requests for injunctive and declaratory relief are denied; 20 4. All other claims and defendants are dismissed from this action for the failure to 21 state a claim upon which relief may be granted; and 22 5. This action is referred back to the magistrate judge for further proceedings 23 24 25 consistent with this order. IT IS SO ORDERED. Dated: March 9, 2018 UNITED STATES DISTRICT JUDGE 26 27 28 2

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