(PC) Gelazela v. United States of America, et al., No. 1:2021cv01499 - Document 24 (E.D. Cal. 2022)
Court Description: ORDER ADOPTING 20 Findings and Recommendations; ORDERED the Dismissal of all Defendants except for Defendant Moore and Defendant United States of America; ORDER SEVERING Claims and DIRECTING Clerk to Open new actions; ORDERED that this case be referred back to the Magistrate Judge for further proceedings, signed by District Judge Anthony W. Ishii on 11/30/2022. (Martin-Gill, S)
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(PC) Gelazela v. United States of America, et al. Doc. 24 Case 1:21-cv-01499-AWI-EPG Document 24 Filed 12/01/22 Page 1 of 3 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MARK GELAZELA, 9 10 11 12 Plaintiff, Case No. 1:21-cv-01499-AWI-EPG (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS v. (ECF Nos. 13 & 20) UNITED STATES OF AMERICA, et al., Defendants. 13 ORDER SEVERING CLAIMS AND DIRECTING CLERK TO OPEN NEW ACTIONS 14 15 Mark Gelazela (“Plaintiff”) is a former prisoner proceeding pro se and in forma 16 pauperis in this action. The matter was referred to a United States magistrate judge pursuant to 17 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 18 19 On March 22, 2022, Magistrate Judge Erica P. Grosjean entered findings and recommendations, recommending that: 22 1. This case proceed on Plaintiff’s claim against defendant Moore for deliberate indifference to his serious medical needs in violation of the Eighth Amendment and Plaintiff’s Federal Tort Claims Act claim against the United States based on the treatment Plaintiff received (or failed to receive) for his knee; 23 2. Plaintiff’s ADA and Rehabilitation Act claims be dismissed with prejudice; 20 21 24 25 26 27 28 3. Plaintiff’s Bivens claims against defendants White, Lepe, Lehman, Blocher, FCI Mendota, and the Bureau of Prisons based on the treatment Plaintiff received (or failed to receive) for his knee be dismissed with prejudice and without leave to amend; and 4. All other claims be dismissed without prejudice to Plaintiff bringing them in separate lawsuit(s) and without leave to amend. (ECF No. 20, pgs. 22-23). 1 Dockets.Justia.com Case 1:21-cv-01499-AWI-EPG Document 24 Filed 12/01/22 Page 2 of 3 1 2 3 Plaintiff was provided an opportunity to file objections to the findings and recommendations. Plaintiff filed his objections on April 9, 2022. (ECF No. 21). 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, 5 the Court finds the findings and recommendations to be supported by the record and proper 6 analysis. 7 However, given Plaintiff’s request in his objections that the unrelated claims be severed 8 instead of dismissed, the Court will sever the unrelated claims into new cases instead of 9 dismissing them. 10 Accordingly, THE COURT HEREBY ORDERS that: 11 1. 2022, are ADOPTED in part. 12 13 The findings and recommendations issued by the magistrate judge on March 22, 2. This case proceeds on Plaintiff’s claim against defendant Moore for deliberate 14 indifference to his serious medical needs in violation of the Eighth Amendment 15 and Plaintiff’s Federal Tort Claims Act claim against the United States based on 16 the treatment Plaintiff received (or failed to receive) for his knee. 17 3. Plaintiff’s ADA and Rehabilitation Act claims are dismissed with prejudice. 18 4. Plaintiff’s Bivens claims against defendants White, Lepe, Lehman, Blocher, FCI 19 Mendota, and the Bureau of Prisons based on the treatment Plaintiff received (or 20 failed to receive) for his knee are dismissed with prejudice and without leave to 21 amend. 22 5. V are severed from the claims proceeding in this case. 23 24 6. Plaintiff’s claim that is currently identified as Claim VI is severed from the claims proceeding in this case. 25 26 Plaintiff’s claims that are currently identified as Claim III, Claim IV, and Claim 7. The Clerk of Court is directed to: 27 a. Open two new § 1983 actions for Plaintiff. 28 b. Assign a random magistrate judge to both actions. 2 Case 1:21-cv-01499-AWI-EPG Document 24 Filed 12/01/22 Page 3 of 3 c. File and docket a copy of the following in both newly opened actions: the 1 2 order granting Plaintiff’s application to proceed in forma pauperis (Doc. No. 3 11); Plaintiff’s First Amended Complaint (Doc. No. 13); the screening 4 findings and recommendations (Doc. No. 20); and this order. d. Provide Plaintiff with the case numbers for the newly opened actions. 5 6 8. Plaintiff has thirty days from the date the first new case is opened to file an 7 amended complaint that only includes Claims III, Claim IV, and Claim V. The 8 amended complaint shall be no longer than twenty pages.1 9 9. Plaintiff has thirty days from the date the second new case is opened to file an 10 amended complaint that only includes claim VI. The amended complaint shall 11 be no longer than twenty pages. 12 10. The Clerk of Court is directed to reflect the dismissal of all defendants on the 13 Court’s docket, except for defendant Moore and defendant United States of 14 America. 15 11. This case is referred back to the magistrate judge for further proceedings. 16 17 IT IS SO ORDERED. 18 Dated: November 30, 2022 SENIOR DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 1 28 Plaintiff will be required to file documents in the new actions through the mail. Plaintiff may request access to ECF in each new case. 3
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