(PC) Kindred v. Cabrera ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, Case No. 1:19-cv-00901-NONE-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS CONSTRUING THE PLAINTIFF’S 13 v. OBJECTIONS TO THE FINDINGS AND RECOMMENDATIONS AS A MOTION 14 WUILMER CABRERA, et al., FOR RECONSIDERATION AND TO GRANT THE MOTION 15 Defendants. (Doc. 24) 16 14-DAY DEADLINE 17 18 On February 20, 2020, the Court entered a screening order finding that Plaintiff’s 19 complaint states cognizable claims of excessive force against Defendants Cabrera and Media and 20 a failure to protect claim against John Doe. (Doc. 7.) The Court granted Plaintiff an opportunity to 21 file an amended complaint, a notice of voluntary dismissal, or a notice of election to stand on his 22 complaint. (Id.) The Court advised Plaintiff that John Doe must be named or otherwise identified 23 for the United States Marshal to effect service. (Id.) Plaintiff filed a first amended complaint. 24 (Doc. 13.) 25 On May 15, 2021, the Court issued findings and recommendations determining that the 26 amended complaint is substantially similar to the original complaint, with minor factual additions, 27 asserting the same claims against the same defendants. (Doc. 15.) Therefore, the Court construed 28 the first amended complaint as a notice of Plaintiff’s intent to stand on his original complaint. 1 (Id.) Because Plaintiff did not identify “John Doe” sufficiently to effect service of process, the 2 Court recommended the dismissal of claims against John Doe. (Id.) 3 During the pendency of the findings and recommendations, on July 12, 2021, Plaintiff 4 filed a motion for a subpoena to discovery the name of John Doe. (Doc. 18.) The Court granted 5 the motion, (Doc. 19), and on August 20, 2021, Plaintiff filed a reply to the defendants’ objection 6 to the service of the subpoena. (Doc. 21) In this pleading, Plaintiff indicates that the identity of 7 John Doe is Lawrence Congress. (Doc. 21.) Plaintiff failed to object to the findings and 8 recommendations and on December 1, 2021, the Court adopted them, ordered the dismissal of 9 Defendant John Doe from the action, and ordered the case to proceed on Plaintiff’s excessive 10 force claims against Defendants Cabrera and Media. (Doc. 24.) 11 On December 13, 2021, Plaintiff filed a reply to the district judge’s order adopting the 12 findings and recommendations, noting the assertion he made in response to the objections to the 13 subpoena and reiterating that the Attorney General’s Office identified John Doe as Lawrence 14 Congress. 15 Because the Plaintiff provided Lawrence Congress’s identity after the Court issued the 16 findings and recommendations but before the order adopting the findings and recommendations— 17 albeit in an opaque fashion--the Court finds that Plaintiff’s failure to protect claim against 18 Congress should be allowed to proceed. Accordingly, the Court RECOMMENDS: 19 1. Plaintiff’s objections to the findings and recommendations be construed as a 20 motion for reconsideration (Doc. 24) and that it should be GRANTED. 21 2. The First Amended Complaint be AMENDED by interlineation to substitute 22 Laurence Congress for John Doe. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 25 after being served with these Findings and Recommendations, the parties may file written 26 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 27 Findings and Recommendations.” The parties are advised that failure to file objections within the 28 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 1 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 IT IS SO ORDERED. 3 4 Dated: December 15, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28