(PC) Williams v. Thompson et al, No. 1:2019cv00330 - Document 24 (E.D. Cal. 2020)

Court Description: ORDER ADOPTING 16 Findings and Recommendations; ORDER RESOLVING 19 Motion for Extension ; ORDERED that this action shall proceed on Thompson, Houston, Shoemaker, Castalas, Hawthorne, Robinson, Perez and Scalley; This matter is referred back to Magistrate Judge, signed by District Judge Dale A. Drozd on 04/15/2020. Madrigal, Burns and Diaz terminated. (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 12 13 14 15 No. 1:19-cv-00330 NONE JLT (PC) JOHN WESLEY WILLIAMS, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS NON-COGNIZABLE CLAIMS Plaintiff, v. (Doc. Nos. 16, 19) THOMPSON, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 9, 2020, the assigned magistrate judge screened plaintiff’s complaint and 21 found that some of the claims could proceed, while others were not cognizable as plead. (Doc. 22 No. 13.) In that screening order the magistrate judge provided plaintiff the option to stand on his 23 original complaint, proceed with it as screened, or file an amended complaint. (Id.) Plaintiff filed 24 a notice of his willingness to proceed on the complaint as screened and to dismiss the claims 25 deemed non-cognizable by the screening order. (Doc. No. 14.) The magistrate judge thereafter 26 issued findings and recommendations recommending that plaintiff’s claims found to be non- 27 cognizable in the screening order be dismissed, which were served on plaintiff and which 28 contained notice to plaintiff that any objections thereto were to be filed within fourteen days after 1 1 service. (Doc. No. 16.) Plaintiff has since filed a document titled “motion to extend time and for 2 reconsideration” (Doc. No. 19), which the court construes as objections to the findings and 3 recommendations. To the extent this document requested an extension of time to file objections 4 to the findings and recommendations, that request will be granted. Plaintiff, who describes 5 having been transferred between institutions around the time the findings and recommendations 6 were issued, has shown good cause for the granting of an extension of time to file his objections 7 and the court has considered them. 8 9 Plaintiff’s sole objection to the findings and recommendations concerns the magistrate judge’s conclusion that plaintiff had failed to state a cognizable claim against defendant 10 Correctional Officer (“CO”) Madrigal. Plaintiff contends that the allegations of his complaint 11 properly implicated CO Madrigal because he was “directly present and acting in concert with 12 deprivations imposed by Defendant Scalley….” (Doc. No. 19 at 2-3.) According to plaintiff, CO 13 Madrigal should have interceded when his fellow officers violated plaintiff’s rights. In support of 14 his objection in this regard, plaintiff cites to a footnote in United States v. Koon, 34 F.3d 1416, 15 1447 n.25 (9th Cir. 1994), rev’d on other grounds, 518 U.S. 81 (1996), in which the Ninth Circuit 16 noted that a police officer has a duty to intercede when their fellow officers violate the 17 constitutional rights of a suspect or other citizen. 18 Plaintiff’s allegations as alleged in his complaint relating to CO Madrigal are limited to 19 the following: CO Madrigal and CO Scalley escorted plaintiff to administrative segregation, CO 20 Madrigal was present when CO Scalley forcefully pushed plaintiff into the holding cell, and CO 21 Madrigal was present when CO Scalley removed plaintiff’s legal papers and threatened him. 22 Contrary to plaintiff’s suggestion, however, nothing in these allegations indicates that CO 23 Madrigal conspired or acted in concert with CO Scalley. There is also no indication that CO 24 Madrigal knew CO Scalley would push plaintiff or that CO Madrigal had a “realistic opportunity” 25 to intercede in that moment. See Cunningham v. Gates, 229 F.3d 1271, 1289, 1290 (9th Cir. 26 2000). As for the confiscation of plaintiff’s legal paperwork, this act implicates a constitutional 27 right only when it actually results in the thwarting of plaintiff’s pursuit of a civil rights action or a 28 petition for writ of habeas corpus. Lewis v. Casey, 518 U.S. 343, 349 (1996). Because plaintiff 2 1 has not alleged an actual injury stemming from CO Scalley’s conduct, CO Madrigal’s alleged 2 failure to act does not serve as the basis for a cognizable claim. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 court finds the findings and recommendations to be supported by the record and by proper 6 analysis. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s motion for extension of time (Doc. No. 19) is granted; 9 2. The findings and recommendations filed February 7, 2010 (Doc. No. 16) are adopted 10 in full; 11 3. This action shall proceed on the following claims: (1) a First Amendment retaliation 12 claim Thompson, Houston, Shoemaker, Castalas, and Hawthorne; (2) an Eighth 13 Amendment deliberate indifference claim against Thompson, Houston, Shoemaker; 14 (3) an Eighth Amendment medical indifference claim against Robinson, Castalas, and 15 Perez; and (4) an Eighth Amendment excessive force claim against Scalley, Castalas, 16 and Perez. 17 4. All remaining claims and defendants are hereby dismissed; and 18 5. This matter is referred back to the magistrate judge. 19 20 21 IT IS SO ORDERED. Dated: April 15, 2020 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 3

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