(PC) Brookins v. Dwivedi ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY L. BROOKINS, 1:18-cv-00645-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION 13 vs. PROCEED ONLY AGAINST DEFENDANT DWIVEDI ON PLAINTIFF’S MEDICAL 14 RAJENDRA DWIVEDI, et al., CLAIM UNDER THE EIGHTH AMENDMENT, AND THAT ALL OTHER 15 Defendants. CLAIMS AND DEFENDANTS BE DISMISSED 16 OBJECTIONS, IF ANY, DUE IN 14 DAYS 17 18 19 20 Barry L. Brookins (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 22 commencing this action on May 10, 2018. (ECF No. 1.) 23 On July 8, 2019, the court screened the Complaint and found that it states a cognizable 24 medical claim under the Eighth Amendment against defendant Dr. Rajendra Dwivedi, but no 25 other claims. (ECF No. 25.) Defendant Dwivedi was served with process. 26 On November 12, 2020, the court issued an amended screening order acknowledging 27 defendants who were inadvertently omitted from the first screening order. (ECF No. 67.) The 28 amended order found that the following defendants were named in the Complaint: Rajendra 1 Dwivedi (M.D.), Dr. Barns, Dr. Griffin, Larry Mix (CRNA - Anesthetist), Officer Clark 2 (Transportation Officer), Officer Viagorosa (Transportation Officer), Dr. M. Bridgeford, C. 3 Cryer (CEO), D. Roy (DSW), P. Martinez (Health Care Grievance Coordinator), S. Gates (Chief 4 Health Care Grievance Coordinator), Dr. P. Metts (Substance Abuse Treatment Facility, 5 Corcoran (SATF)), William C. Ryan (Judge, Los Angeles County Superior Court), and Robert 6 S. Burns (Judge, Kings County Superior Court) (collectively, “Defendants”). (Id.) The court 7 found that the Complaint states a cognizable medical claim under the Eighth Amendment against 8 defendant Dr. Rajendra Dwivedi, but no other claims against any of the Defendants. Plaintiff 9 was required to either (1) file an amended complaint, or (2) notify the court that he is willing to 10 proceed only with the medical claim against defendant Dr. Rajendra Dwivedi found cognizable 11 by the court. (Id.) 12 On November 25, 2020, Plaintiff notified the court that he is willing to proceed only with 13 the medical claim against defendant Dwivedi found cognizable by the court. (ECF No. 68.) 14 Based on the foregoing, it is HEREBY RECOMMENDED that: 15 1. This action proceed only on Plaintiff’s medical claim under the Eighth 16 Amendment against defendant Dr. Rajendra Dwivedi; 17 2. All remaining claims and defendants be dismissed from this action; 18 3. Plaintiff’s claims for an inadequate prison appeals process and state law claims 19 be dismissed from this action based on Plaintiff’s failure to state any claims upon 20 which relief may be granted; 21 4. Defendants Dr. Barns, Dr. Griffin, Larry Mix (CRNA - Anesthetist), Officer Clark 22 (Transportation Officer), Officer Viagorosa (Transportation Officer), Dr. M. 23 Bridgeford, C. Cryer (CEO), D. Roy (DSW), P. Martinez (Health Care Grievance 24 Coordinator), S. Gates (Chief Health Care Grievance Coordinator), Dr. P. Metts 25 (Substance Abuse Treatment Facility, Corcoran (SATF)), William C. Ryan 26 (Judge, Los Angeles County Superior Court), and Robert S. Burns (Judge, Kings 27 County Superior Court) be dismissed from this action based on Plaintiff’s failure 28 to state any claims against them upon which relief may be granted; and 1 5. This case be referred back to the Magistrate Judge for further proceedings. 2 These findings and recommendations are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 4 (14) days after the date of service of these findings and recommendations, any party may file 5 written objections with the court. Such a document should be captioned “Objections to 6 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 7 and filed within fourteen (14) days after the date the objections are filed. The parties are advised 8 that failure to file objections within the specified time may result in the waiver of rights on appeal. 9 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 10 1391, 1394 (9th Cir. 1991)). 11 IT IS SO ORDERED. 12 13 Dated: December 2, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28