Opinion
1:22-cv-01540 JLT SKO (PC)
09-27-2023
MARK A. GELAZELA, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS FOLLOWING SCREENING OF PLAINTIFF'S SECOND AMENDED COMPLAINT
Mark A. Gelazela seeks to hold Defendants liable for civil rights violations pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
The assigned magistrate judge issued findings and recommendations following screening of Plaintiff's second amended complaint, recommending that: (1) Plaintiff's Bivens claims against all named Defendants be dismissed without leave to amend; (2) Plaintiff's state law or “CTCA” claims against all Defendants be dismissed without leave to amend; (3) Defendants Warden Douglas White, Case Manager K. Lehman, Correctional Officer Alcantor, Mendota FCI and the Bureau of Prisons be dismissed from this action; and (4) Plaintiff be granted leave to amend his Federal Tort Claims Act claims against Defendant United States of America, by filing a third amended complaint within 30 days should the findings be adopted by the assigned district judge. (Doc. 20.) The Court advised any objections were due within fourteen days and that the failure to file objections within this time “may result in waiver of his rights on appeal.” (Id. at 24-25, citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Rather than filing objections, Plaintiff filed a third amended complaint and a Notice to Court Regarding Third Complaint for Damages. (Docs. 21, 22.)
According to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of this case. Having carefully reviewed the matter, the Court concludes the findings and recommendations are supported by the record and proper analysis. Accordingly, the Court ORDERS:
1. The Findings and Recommendations issued on September 12, 2023 (Doc. 20) are ADOPTED in full.
2. Plaintiff's Bivens claims against all named Defendants are DISMISSED without leave to amend.
3. Plaintiff's state law or “CTCA” claims against all Defendants are DISMISSED without leave to amend.
4. The following Defendants are DISMISSED from this action:
a. Warden Douglas White
b. Case Manager K. Lehman
c. Correctional Officer Alcantor
d. Mendota FCI
e. Bureau of Prisons
5. Because Plaintiff has filed a third amended complaint (Doc. 21), this matter is referred back to the assigned magistrate judge for screening of the third amended complaint consistent with this order.
IT IS SO ORDERED.