Cavanaugh v. Youngblood et al, No. 1:2017cv00832 - Document 40 (E.D. Cal. 2018)

Court Description: ORDER adopting 38 Findings and Recommendations granting 28 Motion to Dismiss with leave to amend signed by Chief Judge Lawrence J. O'Neill on 4/2/2018. Amended Complaint due by 5/7/2018. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK J. CAVANAUGH, Plaintiff, 12 13 14 15 v. DONNY YOUNGBLOOD, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-0832 - LJO - JLT ORDER ADOPTING IN FULL THE FINDINGS AND RECOMMENDATIONS GRANTING THE MOTION TO DISMISS WITH LEAVE TO AMEND (Docs. 28, 38) 16 17 Plaintiff is housed at Atascadero State Hospital. He alleges that he was housed for four weeks 18 at Kern County’s Lerdo Pre-Trial Facility in order to attend a hearing in Kern County Superior Court, 19 and while at Lerdo was erroneously placed in a cell with Norteno gang members, despite that he was a 20 Norteno gang drop-out. Within days, he was attacked and suffered injuries. Plaintiff asserts the state 21 defendants should have acted to prevent his injuries. 22 The magistrate judge found that, based upon the facts alleged and revealed during the hearing 23 upon Defendants’ motion to dismiss, the Eighth Amendment does not apply in this case. Therefore, the 24 magistrate judge recommended the motion be granted with leave to amend claims based upon the 25 Fourteenth Amendment. (Doc. 38 at 1-2) In addition, the magistrate judge recommended the claim for 26 negligence be dismissed with leave to amend, and Plaintiff’s request to dismiss defendant Price be 27 granted. (Id. at 4, 6). The parties were given fourteen days to file any objections to this 28 recommendation. (Id. at 6) In addition, the parties were “advised that failure to file objections within 1 1 the specified time may waive the right to appeal the Order of the District Court.” (Id., citing Martinez 2 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). To date, no objections have been filed. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United 4 School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court conducted a de novo review of the case. 5 Having carefully reviewed the file, the Court finds the Findings and Recommendations are supported 6 by the record and proper analysis. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. IN FULL; 9 10 The Findings and Recommendations dated March 12, 2018 (Doc. 38) are ADOPTED 2. The motion to dismiss the complaint is GRANTED without leave to amend regarding 11 any Eighth Amendment claims, but with leave to amend to assert claims under the 12 Fourteenth Amendment; 13 3. The motion to dismiss the claim based upon state law negligence is GRANTED with leave to amend; 14 15 4. Plaintiff’s request to dismiss defendant Price is GRANTED; and 16 5. Plaintiff’s amended Complaint is due thirty (30) days from the date of this Order. 17 18 19 20 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ April 2, 2018 UNITED STATES CHIEF DISTRICT JUDGE 21 22 23 24 25 26 27 28 2