Opinion
1:16-cv-00038-DAD-GSA-PC
12-29-2016
CARLOS FRANCISCO LOPEZ, Plaintiff, v. V. SHULTZ, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST: (1) DEFENDANT SHULTZ FOR FAILURE TO PROTECT; (2) DEFENDANTS SHULTZ AND NURSE DOE #6 FOR INADEQUATE MEDICAL CARE; AND (3) DEFENDANTS ZANCHI AND SERGEANT DOE #5 FOR RETALIATION; AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN 20 DAYS
Carlos Francisco Lopez ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 12, 2016. (ECF No. 1.) The Complaint names as defendants V. Shultz (Library Technical Assistant, CCI), Kim Holland (Warden, CCI), J. Wood (Correctional Counselor II, CCI), M. Dailo (Correctional Counselor II, CDI), J. Zanchi (Associate Governmental Program Analyst, CCI), Correctional Officer Rodriguez, Doe #1 (Chief Deputy Warden, CCI), Doe #2 (Associate Warden, CCI), Doe #3 (Captain, CCI), Doe #4 (Lieutenant, CCI), Doe #5 (Sergeant, CCI), and Doe #6 (Nurse, CCI).
The Court screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A and found that it states cognizable claims as follows: (1) against Defendant Shultz for failure to protect Plaintiff, in violation of the Eighth Amendment; (2) against Defendants Rodriguez and Nurse Doe #6 for inadequate medical care, in violation of the Eighth Amendment; and (3) against Defendants Zanchi and Sergeant Doe #5 for retaliation in violation of the First Amendment. (ECF No. 11.) The court found no other claims. (Id.) Plaintiff also alleged violation of state law by Defendants.
The court shall exercise supplemental jurisdiction over any related state law claims under 28 U.S.C. § 1367. However, at this stage of the proceedings, the Court makes no determination about the viability of Plaintiff's state law claims. --------
On November 14, 2016, Plaintiff was granted leave to either file an Amended Complaint or notify the Court that he is willing to proceed only on the claims found cognizable by the Court. (Id.) On November 21, 2016, Plaintiff filed a notice informing the Court that he is willing to proceed only on the cognizable claims against defendants Shultz, Rodriguez, Zanchi, and Does #5 and #6. (ECF No. 16.)
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action proceed only against (1) Defendant Shultz for failure to protect Plaintiff, in violation of the Eighth Amendment; (2) Defendants Rodriguez and Nurse Doe #6 for inadequate medical care, in violation of the Eighth Amendment; (3) Defendants Zanchi and Sergeant Doe #5 for retaliation in violation of the First Amendment; and (4) related state law claims;///
2. All remaining claims and defendants be dismissed from this action;
3. Plaintiff's claims for Supervisory Liability, Denial of Access to Courts, Prison Appeals Process, and Promulgation of Policy, be dismissed from this action based on Plaintiff's failure to state a claim; and
4. This case be referred back to the Magistrate Judge for further proceedings, including initiation of service.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty (20) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: December 29 , 2016
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE