Opinion
Case No. 1:18-cv-01230-LJO-EPG (PC)
05-16-2019
FRANK E. PETERS, Plaintiff, v. NORRIS HOLLIE, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (ECF NOS. 67 & 77) 21-DAY DEADLINE
Frank E. Peters ("Plaintiff") is a former prisoner proceeding pro se and in forma pauperis in this civil rights action under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. This case now proceeds on Plaintiff's first amended complaint, which was filed on March 22, 2018. (ECF No. 64).
On April 13, 2018, Defendants filed a motion to dismiss the first amended complaint on the ground that Plaintiff cannot bring a Bivens claim against defendants who are private contractors in a private prison that houses federal inmates. (ECF No. 67). On May 25, 2018, Plaintiff filed an opposition to the motion to dismiss. (ECF No. 71).
On May 4, 2018, Plaintiff dismissed defendants Conrad M. Graber, Warden of Terminal Island; Mahesh B. Patel, M.D.; and Evelyn G. Castro, M.D. (the Terminal Island Federal Correctional Institution defendants) from this action. (ECF No. 69). The remaining defendants are Norris Hollie, M.D.; Burnet T. Rucker, M.D.; Stephanie Hicks, R.N.; and Craig Apker, Warden (the Taft Correctional Institution defendants). (ECF No. 64). --------
On April 10, 2019, Magistrate Judge Erica P. Grosjean entered findings and recommendations, recommending that:
1. Defendants' motion to dismiss be GRANTED IN PART.(ECF No. 77, p. 13).
2. Plaintiff's federal claims based on the Eighth Amendment be DISMISSED, with prejudice.
3. Plaintiff be granted leave to amend to assert state tort claims.
The parties were provided an opportunity to file objections to the findings and recommendations. The deadline for filing objections has passed, and no objections have been filed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this 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 proper analysis.
Accordingly, THE COURT HEREBY ORDERS that:
1. The findings and recommendations issued by the magistrate judge on April 10, 2019, are ADOPTED in full;IT IS SO ORDERED.
2. Defendants' motion to dismiss is GRANTED IN PART;
3. Plaintiff's federal claims based on the Eighth Amendment are DISMISSED, with prejudice;
4. Plaintiff has twenty-one days from the date of service of this order to file an amended complaint that asserts state tort claims; and
5. This case is referred back to the magistrate judge for further proceedings.
Dated: May 16 , 2019
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE