(PC) Brown v. Emmert et al, No. 2:2022cv01001 - Document 24 (E.D. Cal. 2022)

Court Description: ORDER signed by District Judge Dale A. Drozd on 11/23/2022 ADOPTING 11 Findings and Recommendations in full and DISMISSING all claims other than those described in this order. This action is REFERRED back to the assigned magistrate judge for further proceedings consistent with this order. (Spichka, K.)
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(PC) Brown v. Emmert et al Doc. 24 Case 2:22-cv-01001-DAD-CKD Document 24 Filed 11/28/22 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK ANTHONY BROWN, 12 Plaintiff, 13 14 No. 2:22-cv-01001-DAD-CKD (PC) v. W. EMMERT, et al., 15 Defendants. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS (Doc. No. 11) 16 Plaintiff Mark Anthony Brown is a state prisoner proceeding pro se and in forma pauperis 17 18 in this civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 16, 2022, the assigned magistrate judge screened plaintiff’s complaint filed in 21 this action and found that plaintiff had stated several cognizable claims against defendants (listed 22 below), but that plaintiff had failed to state any other cognizable claims. Specifically, the 23 magistrate judge identified the following cognizable claims in plaintiff’s complaint: 24 1. A claim arising under the Eighth Amendment against defendant Emmert for exposure to harmful conditions of confinement when Emmert referred to plaintiff as a “rat” over a loudspeaker. 25 26 27 ///// 28 ///// 1 Dockets.Justia.com Case 2:22-cv-01001-DAD-CKD Document 24 Filed 11/28/22 Page 2 of 3 2. Claims arising under the Eighth Amendment against defendants Wooden and Gonzales for exposure to harmful conditions of confinement with respect to their not taking preventative measures when defendant Emmert referred to plaintiff as a “rat” over a loud-speaker. 1 2 3 3. A claim arising under the First Amendment against defendant Emmert for retaliating against plaintiff for filing a prisoner grievance by calling plaintiff a “rat” over a loudspeaker and by denying plaintiff phone calls and showers. 4 5 6 4. Claims arising under the Eighth Amendment for failure to provide medical treatment against defendants Drake, Tuyen, Archie and Lieu for their failure to provide plaintiff with his inhaler and decontaminate plaintiff from exposure to pepper spray. 7 8 9 10 (Doc. No. 6 at 2.) Plaintiff was granted leave to file an amended complaint or notify the court of 11 his willingness to proceed only on the claims found to be cognizable in the screening order within 12 twenty-one (21) days after service of the screening order. (Id. at 3.) On August 24, 2022, 13 plaintiff notified the court that he was willing to proceed only on the claims identified by the 14 magistrate judge in the screening order as cognizable. (Doc. No. 9.) Consequently, on August 30, 2022, the assigned magistrate judge issued findings and 15 16 recommendations recommending that this action proceed on plaintiff’s claims found to be 17 cognizable in the screening order and that all other claims brought by plaintiff in his complaint be 18 dismissed. (Doc. No. 11 at 4.) The pending findings and recommendations were served on 19 plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) 20 days after service. (Id.) To date, no objections have been filed, and the time in which to do so 21 has now passed. 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 23 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 24 findings and recommendations are supported by the record and proper analysis. 25 Accordingly, 26 1. adopted in full; 27 28 The findings and recommendations issued on August 30, 2022 (Doc. No. 11) are ///// 2 Case 2:22-cv-01001-DAD-CKD Document 24 Filed 11/28/22 Page 3 of 3 1 2. 2 This action shall proceed on plaintiff’s claims as follows: a. A claim arising under the Eighth Amendment against defendant Emmert 3 for exposure to harmful conditions of confinement when Emmert referred 4 to plaintiff as a “rat” over a loudspeaker; 5 b. Claims arising under the Eighth Amendment against defendants Wooden 6 and Gonzales for exposure to harmful conditions of confinement with 7 respect to their not taking preventative measures when defendant Emmert 8 referred to plaintiff as a “rat” over a loud-speaker; 9 c. A claim arising under the First Amendment against defendant Emmert for 10 retaliating against plaintiff for filing a prisoner grievance by calling 11 plaintiff a “rat” over a loud-speaker and by denying plaintiff phone calls 12 and showers; and 13 d. Claims arising under the Eighth Amendment for failure to provide medical 14 treatment against defendants Drake, Tuyen, Archie and Lieu for their 15 failure to provide plaintiff with his inhaler and decontaminate plaintiff 16 from exposure to pepper spray; 17 3. All other claims brought by plaintiff in this action are dismissed; and 18 4. This action is referred back to the assigned magistrate judge for further 19 proceedings consistent with this order. 20 21 IT IS SO ORDERED. Dated: November 23, 2022 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 3
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