(PC) Chavez v. Doe 1 ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 GILBERTO CHAVEZ, 1:18-cv-01534-AWI-GSA-PC 9 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION 10 v. PROCEED ONLY AGAINST DEFENDANT CELINA SALINAS FOR DELIBERATE 11 J. DOE #1, et al., INDIFFERENCE IN VIOLATION OF THE EIGHTH AMENDMENT, AND THAT ALL 12 Defendants. OTHER CLAIMS AND DEFENDANTS BE DISMISSED 13 OBJECTIONS DUE WITHIN 14 DAYS 14 15 Gilberto Chavez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 16 with this civil rights action pursuant to 42 U.S.C. § 1983. On October 16, 2018, Plaintiff filed 17 the Complaint commencing this action at the United States District Court for the Central District 18 of California. (ECF No. 1.) On October 31, 2018, the case was transferred to this court. (ECF 19 No. 4.) 20 On February 20, 2020, Plaintiff filed the Second Amended Complaint. (ECF No. 26.) 21 The Second Amended Complaint names as defendants Rosemary Ndoh (Warden), Celina Salinas 22 (Kitchen Supervisor), and CDCR’s Medical Staff, (collectively “Defendants”), and brings claims 23 for deliberate indifference under the Eighth Amendment, denial of medical care under the Eighth 24 Amendment, due process under the Fourteenth Amendment, and negligence. 25 On April 15, 2020, the court screened the Second Amended Complaint and ordered 26 Plaintiff to either file a Third Amended Complaint or notify the court that he is willing to proceed 27 only with the deliberate indifference claim against defendant Celina Salinas found cognizable by 28 the court. (ECF No. 27.) 1 On October 19, 2020, Plaintiff notified the court that he is willing to proceed only with 2 the deliberate indifference claim against defendant Celina Salinas found cognizable by the court. 3 (ECF No. 37.) 4 Based on the foregoing, it is HEREBY RECOMMENDED that: 5 1. This action proceed only on Plaintiff’s claim against defendant Celina Salinas for 6 deliberate indifference under the Eighth Amendment; 7 2. All remaining claims and defendants be dismissed from this action; 8 3. Plaintiff’s claims for violation of due process, denial of medical care, and 9 negligence be dismissed from this action based on Plaintiff's failure to state any 10 claims upon which relief may be granted; 11 4. Defendants Rosemary Ndoh (Warden) and CDCR’s Medical Staff be dismissed 12 from this action based on Plaintiff’s failure to state any claims against them upon 13 which relief may be granted; and 14 5. This case be referred back to the Magistrate Judge for further proceedings, 15 including initiation of service of process. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 18 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 19 may file written objections with the Court. The document should be captioned “Objections to 20 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 21 objections within the specified time may waive the right to appeal the District Court’s order. 22 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 IT IS SO ORDERED. 24 25 Dated: October 22, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28