(PC) McCurdy v. California Department of Corrections and Rehabilitation et al, No. 2:2017cv01736 - Document 42 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/08/18 RECOMMENDING that defendant's motion for a stay 26 be denied. Motion to Stay 26 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)
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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 JAMES C. MCCURDY, 12 13 14 15 16 No. 2:17-cv-1736 TLN CKD P Plaintiff, v. FINDINGS AND RECOMMENDATIONS CALIFORNIA DEPARTMENT OF CORRECITONS AND REHABILITATION, et al., Defendants. 17 18 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 19 rights under 42 U.S.C. § 1983. The remaining defendant, Randy Thomas, is a Correctional 20 Officer at the California Medical Facility. Plaintiff’s remaining claims arise under the Eighth 21 Amendment and are for denial of medical care and excessive force. The events which form the 22 basis of plaintiff’s claims occurred August 18, 2015. 23 Defendant has filed a motion asking that this action by stayed. He asserts plaintiff has 24 been charged criminally with assault for actions he took during the August 18, 2015 incidents 25 with defendant. Defendant claims that if plaintiff is convicted on that charge, the claims in this 26 case will be barred by Heck v. Humphrey, 512 U.S. 477 (1994), in which the Supreme Court 27 found that a prisoner cannot proceed on a claim for damages if a favorable outcome on that claim 28 would imply the invalidity of his conviction. Id. at 487. Plaintiff opposes the motion. 1 1 A conviction for assault does not necessarily preclude a finding that, during the same 2 series of events, the criminal defendant was also subjected to excessive force or denial of medical 3 care in violation of the Eighth Amendment. Furthermore, defendant fails to point to specific facts 4 suggesting that if plaintiff were convicted of the pending assault charge, plaintiff’s success on 5 either remaining Eighth Amendment claim would imply the invalidity of his conviction. For 6 these reasons, and because plaintiff prefers to proceed with this action, the court will recommend 7 that defendant’s motion for a stay be denied. 8 9 Accordingly, IT IS HEREBY RECOMMENDED that defendant’s motion for a stay (ECF No. 26) be denied. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 objections shall be served and filed within fourteen days after service of the objections. The 16 parties are advised that failure to file objections within the specified time may waive the right to 17 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 Dated: November 8, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 1 mccu1736.mfs 25 26 27 28 2