(PC) Smithee v. California Correctional Institution ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANA SMITHEE, et al., ) Case No.: 1:19-cv-0004 - LJO - JLT ) 12 Plaintiffs, ) ORDER ADOPTING IN FULL THE FINDINGS ) AND RECOMMENDATIONS GRANTING 13 v. ) DEFENDANTS’ MOTIONS TO DISMISS ) (Docs. 29, 32, and 41) 14 CALIFORNIA CORRECTIONAL ) INSTITUTION, et al., ) ORDER DEEMING THE THIRD AMENDED 15 ) COMPLAINT FILED AUGUST 29, 2019 AS THE Defendants. ) OPERATIVE PLEADING 16 ) (Doc. 45) 17 Plaintiffs allege decedent Cyrus Ayers was not provided proper medical care during his 18 incarceration at the California Correctional Institution in Tehachapi, which resulted in his death. (See 19 generally Doc. 26) Defendants Litt-Stoner, Seymour, Nesson and Celosse filed motions to dismiss the 20 second amended complaint. (Docs. 29, 32) On August 15, 2019, the assigned magistrate judge 21 determined Plaintiffs failed to allege facts sufficient to support their claims and recommended the 22 second amended complaint be dismissed with leave to amend. (Doc. 41) 23 Plaintiffs were given fourteen days to file any objections to the recommendation that the 24 complaint be dismissed with leave to amend. (Doc. 41 at 14) In addition, Plaintiff were “advised that 25 failure to file objections within the specified time may waive the right to appeal the District Court’s 26 order.” (Id., citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 27 834, 834 (9th Cir. 2014)). To date, no objections have been filed. However, on August 29, 2019, 28 Plaintiffs filed a Third Amended Complaint. (Doc. 45) 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United 2 School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court conducted a de novo review of the case. 3 Having carefully reviewed the file, the Court finds the Findings and Recommendations are supported 4 by the record and proper analysis. 5 Accordingly, IT IS HEREBY ORDERED: 6 1. The Findings and Recommendations dated August 15, 2019 (Doc. 41) are ADOPTED 7 IN FULL; 8 2. Plaintiffs’ Second Amended Complaint is DISMISSED; and 9 3. The Third Amended Complaint filed on August 29, 2019 (Doc. 45) is deemed the 10 operative pleading in the action. 11 12 IT IS SO ORDERED. 13 Dated: September 6, 2019 /s/ Lawrence J. O’Neill _____ 14 UNITED STATES CHIEF DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28