Opinion
Case No. 1:14-cv-01905-LJO-DLB PC
12-11-2015
ERIC L. BROWN, Plaintiff, v. CATE, et al., Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN DEFENDANTS (Document 12)
Plaintiff Eric L. Brown ("Plaintiff") is a California state prisoner proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. The action was removed to this Court on December 1, 2014.
Plaintiff filed a First Amended Complaint on June 12, 2015. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 28, 2015, the Magistrate Judge issued Findings and Recommendations that Defendants David, Johnson, Cate, Clark and Lopez be dismissed from this action. The Findings and Recommendations were served on the parties and contained notice that any objections must be filed within thirty days. Plaintiff filed objections on November 25, 2015. Defendants did not file a reply. ///
Defendant David was inadvertently omitted from the findings portion of the order. The analysis clearly indicates that Plaintiff fails to state a claim against Defendant David.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff's objections, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
Plaintiff's objections do not present any grounds for rejecting the Magistrate Judge's opinion. Although Plaintiff believes that Defendants knew that he faced a substantial risk of harm, he has not alleged that Defendants specifically knew anything about Plaintiff's incarceration. While they may have known in a general sense of issues related to Valley Fever, this is insufficient to support a finding that they knew of risk of harm to Plaintiff and failed to prevent it.
Plaintiff also objects to the Magistrate Judge's finding that he failed to state a deliberate indifference claim against Defendant David. His objections continue to demonstrate that his claim against Defendant David is based on a disagreement with treatment, which is insufficient to support an Eighth Amendment claim.
Finally, as noted in the Findings and Recommendations, Plaintiff will be granted leave to amend his denial of transfer claim.
In the First Amended Complaint, Plaintiff's denial of transfer claim is alleged against Doe Defendants. If Plaintiff is now aware of their identities, he should provide names when amending. --------
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed October 28, 2015, are adopted in full;IT IS SO ORDERED.
2. Plaintiff's First Amended Complaint is DISMISSED with leave to amend only the denial of transfer claim;
3. Defendants Cate, Lopez, Johnson, Clark and David are DISMISSED from this action.
4. Plaintiff SHALL file an amended complaint within thirty (30) days of the date of service of this order. Failure to file an amended complaint will result in a recommendation that this action be dismissed.
Dated: December 11 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE