Opinion
1:17-cv-00555-LJO-JLT (PC)
06-28-2018
FELIPE MENDEZ, JR., Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS PLAINTIFF'S NON-COGNIZABLE CLAIMS AGAINST UNITED STATES OF AMERICA, GHOTRA, AWAD, RIVERA, MENDOZA, LAKE, LOZANO, MARLOW, CISNEROS, AMOS, QUINTERO, AND GRAMM
(ECF No. 22)
CASE TO REMAIN OPEN
Plaintiff is a prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"). 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 April 10, 2018, the magistrate judge issued findings and recommendations to dismiss non-cognizable claims. (ECF No. 22.) Plaintiff has not filed objections.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis. ////
Accordingly, it is HEREBY ORDERED that:
1. The Court adopts the findings and recommendations filed on April 10, 2018 (ECF No. 22) in full;
2. Plaintiff's case shall proceed on the following cognizable claims:
a. Eighth Amendment deliberate indifference claims against Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, Quintero, and Gramm;
b. First Amendment retaliation claims against Defendants Quintero, Gramm, Amos, Cisneros, and Marlow; and
c. FTCA medical malpractice and negligence claims against the United States of America.
3. Plaintiff's following non-cognizable are dismissed with prejudice:
a. First and Eighth Amendment claims against Defendant United States of America through the actions of its employees, Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, Quintero, and Gramm;
b. First Amendment retaliation claims against Defendants Lozano, Lake, Mendoza, Rivera, Awad, and Ghotra.
4. The Clerk of the Court shall send one USM-285 form, one summons, a Notice of Submission of Documents form, an instruction sheet, and a copy of the second amended complaint, filed November 27, 2017 (ECF No. 21), for service on Defendant United States of America;
5. Within thirty (30) days from the date of this order, Plaintiff shall file the Notice of Submission of Documents and submit the completed Notice to the Court with the following documents:
a. One completed summons for the United States of America;
b. One completed USM-285 form for Defendant United States of America; and
c. Two copies of the second amended complaint filed November 27, 2017; and
IT IS SO ORDERED.
6. Plaintiff need not attempt service on any of the Defendants and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve the above-named Defendants pursuant to Fed. R. Civ. P. 4 without payment of costs.
7. This case shall remain open.
It appears the Clerk's Office has already sent to Plaintiff, and Plaintiff has already submitted to the Court, service documents to effectuate service on Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, Quintero, and Gramm. (ECF No. 26.) A separate service order will issue as to the individual Defendants. Since Plaintiff was not provided service documents for Defendant United States of America, he will be given an opportunity to submit them now.
Dated: June 28 , 2018
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE