(PC) James v. Price et al, No. 2:2017cv01433 - Document 31 (E.D. Cal. 2018)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/9/2018 ORDERING defendant Austin shall file his response to claim III in plaintiff's 27 amended complaint within 30 days; and RECOMMENDING all defendants other than defendant Austin, and all claims other than claim III in plaintiff's amended complaint be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANNIE JAMES, 12 No. 2:17-cv-1433 MCE CKD P Plaintiff, 13 v. 14 J. PRICE, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff, a California prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 18 1983. On November 27, 2017, the court granted plaintiff leave to file an amended complaint. 19 Plaintiff has now filed his amended complaint. 20 The court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 22 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 23 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 25 The court has conducted the required screening and finds that plaintiff’s amended 26 complaint states a claim against defendant Austin upon which relief could be granted arising 27 under the Eighth Amendment for excessive force as detailed in claim III of plaintiff’s amended 28 complaint. 1 1 As for claim I, the allegations do not amount to anything more than negligence in 2 violation of California Law, and plaintiff does not plead compliance with the California Tort 3 Claims Act. See State v. Superior Court, 32 Cal.4th 1234, 1239 (Cal. 2004). 4 As for claim II, which concerns medical care, plaintiff fails to point to facts suggesting he 5 suffered injury as a result of deliberate indifference to serious medical needs. See Estelle v. 6 Gamble, 429 U.S. 97, 104-05 (1976). 7 For these reasons, the court will order defendant Austin to file his response to claim III in 8 plaintiff’s amended complaint and recommend that the other defendants and claims be dismissed. 9 The court does not grant leave to file a second amended complaint, as the court already provided 10 11 12 13 14 plaintiff one opportunity to amend, and providing a second opportunity appears futile. In accordance with the above, IT IS HEREBY ORDERED that defendant Austin file his response to claim III in plaintiff’s amended complaint within 30 days; and IT IS HEREBY RECOMMENDED that all defendants other than defendant Austin, and all claims other than claim III in plaintiff’s amended complaint be dismissed. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, plaintiff may file objections with the 18 court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 19 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 20 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 21 Cir. 1991). 22 Dated: July 9, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 1 jame1433.1(2) 2