Opinion
No. 1:15-cv-01609-DAD-MJS
11-23-2016
DAVID ALLEN, Plaintiff, v. NORM KRAMER et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENATIONS
(1) FOR SERVICE OF COGNIZABLE CLAIM IN COMPLAINT AGAINST DEFENDANTS MAYBERG, KRAMER, AHLIN, AND FRESNO COUNTY BOARD OF SUPERVISORS, AND
(2) DISMISSING ALL OTHER DEFENDANTS AND CLAIMS
(Doc. No. 12)
Plaintiff David Allen, a civil detainee, is proceeding pro se in this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Plaintiff initiated this action by filing his complaint on October 22, 2015. (Doc. No. 1.) The gravamen of plaintiff's claims is that defendants built and housed inmates like him in a facility located in an area known to be hyper-endemic for contraction of Valley Fever, an infection caused by exposure to coccidioides (also called coccidioidomycosis) fungus, and failed to take reasonable steps to protect him from the disease. On March 28, 2016, the assigned magistrate judge screened plaintiff's original complaint and dismissed it with leave to amend on qualified immunity grounds. (Doc. No. 8.)
Plaintiff subsequently filed a document titled "Plaintiff's Opposition Motion to the Amendment of the Complaint," which the assigned magistrate judge construed as a motion for reconsideration of the March 28, 2016 order. (Doc. No. 9.) On August 17, 2016, the assigned magistrate judge granted plaintiff's motion for reconsideration, determining that plaintiff's claims were not barred by the doctrine of qualified immunity, and that the allegations of his complaint were sufficient to proceed to service of the complaint as to named defendants Stephen Mayberg, Norm Kramer, Pam Ahlin, and the Fresno County Board of Supervisors on a safe conditions claim. (Doc. No. 10.) Accordingly, plaintiff was directed to file a notice of his willingness to proceed on the complaint as screened or to file an amended pleading. (Id.) On September 19, 2016, plaintiff filed a response, indicating his willingness to proceed on the complaint as screened. (Doc. No. 11.)
Accordingly, on September 22, 2016, the magistrate judge filed findings and recommendations recommending that this case proceed with respect to the claims and defendants indicated in the August 17, 2016 order and that all other claims and defendants be dismissed with prejudice. The findings and recommendations were served on plaintiff and contained notice to plaintiff that any objections thereto were to be filed within fourteen days. As anticipated in light of his September 19, 2016 response, plaintiff has not filed objections to the findings and recommendations and the time for doing so has passed.
The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge's analysis.
Accordingly,
1. The September 22, 2016 findings and recommendations (Doc. No. 12) are adopted in full;/////
2. This action shall proceed on plaintiff's safe conditions claim against defendants Mayberg, Kramer, Ahlin, and the Fresno County Board of Supervisors;
3. All other claims and Defendants are dismissed with prejudice;
4. Service shall be initiated on defendants Mayberg, Kramer, Ahlin, and the Fresno County Board of Supervisors;
5. The Clerk of Court shall send plaintiff four (4) USM-285 forms, four (4) summons, a Notice of Submission of Documents form, an instruction sheet, and a copy of the October 22, 2015 complaint;
6. Within thirty days from service of this order, plaintiff shall complete and return to the court the Notice of Submission of Documents along with the following documents:
a. Completed summons;
b. One completed USM-285 form for each defendant listed above;
c. Five copies of the endorsed October 22, 2015 complaint; and
IT IS SO ORDERED.
7. Upon receipt of the above-described documents, the court should direct the United States Marshals Service to serve the above-named defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure without payment of costs.
Dated: November 23 , 2016
/s/_________
UNITED STATES DISTRICT JUDGE