Opinion
Case No. 1:14-cv-00553-LJO-SKO (PC)
11-13-2015
LAVELL FRIERSON, Plaintiff, v. U. OJEDA, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING DEFENDANT'S MOTION TO DISMISS, AND REQUIRING DEFENDANT FO TILE ANSWER WITHIN TEN DAYS (Docs. 14 and 20)
Plaintiff Lavell Frierson ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 18, 2014. This action is proceeding on Plaintiff's claim for damages against Defendant Ojeda ("Defendant") for endangering Plaintiff's safety, in violation of the Eighth Amendment of the United States Constitution
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 September 30, 2015, the Magistrate Judge filed a Findings and Recommendations recommending Defendant's Motion to Dismiss be denied. Fed. R. Civ. P. 12(b)(6). Defendant filed an Objection on October 14, 2015. Local Rule 304(b). Plaintiff did not respond. Local Rule 304(d).
At the pleading stage, Plaintiff's allegations must be accepted as true and he must be afforded the benefit of any doubt. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). In this case, Plaintiff's factual allegations are sufficient to permit him to proceed past the pleading stage, which is a "low threshold." Wilhelm, 680 F.3d at 1123; see Lemire v. California Dep't of Corr. and Rehab., 726 F.3d 1062, 1074-78 (9th Cir. 2013) (discussing elements of Eighth Amendment claim). Defendant's strenuous argument to the contrary is perplexing at best; and his citation to a non-pro se civil case raising entirely different constitutional claims is unpersuasive, as are his citations to an unpublished, factually distinguishable decision and two other factually distinguishable decisions.
Compl., ¶¶5, 8, 14.
Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011); Williams v. Wood, 223 Fed.Appx. 670, 671 (9th Cir. 2007); Morgan v. MacDonald, 41 F.3d 1291, 1294 (9th Cir. 1994); and Avery v. Kernan, 2006 WL 1795104 *2 (E.D.Cal. 2006). --------
Defendant may be assured that in accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case, and it has determined the Findings and Recommendations to be supported by the record and by proper analysis. Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed on September 30, 2015, is adopted in full;IT IS SO ORDERED.
2. Defendant's Motion to Dismiss, filed on July 8, 2015, is DENIED, with prejudice; and
3. Defendant shall file an Answer within ten (10) days from the date of service of this order.
Dated: November 13 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE