(PC) Quezada v. Akabike ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALVARO QUEZADA, No. 1:18-cv-00797-DAD-JLT (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 S. SHERMAN, et al., (Doc. No. 30) 15 Defendants. 16 17 Plaintiff Alvaro Quezada is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 20, 2020, the assigned magistrate judge issued findings and recommendations, 21 finding that plaintiff’s third amended complaint (“TAC”) states cognizable claims of deliberate 22 indifference against defendants Akabike, Ceja, and Harris. (Doc. No. 30.) The magistrate judge 23 further recommended that defendant Sherman and all of plaintiffs’ remaining claims be dismissed 24 for failure to state a cognizable claim and without further leave to amend in light of plaintiff’s 25 unsuccessful attempts to state cognizable claims in that regard. (Id. at 1.) The findings and 26 recommendations were served on plaintiff and provided him twenty-one (21) days to file 27 objections. (Id. at 14.) On September 28, 2020, plaintiff untimely filed objections to the findings 28 and recommendations. (Doc. No. 33.) 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 2 de novo review of this case. Having carefully reviewed the file, including plaintiff’s objections, 3 the court finds the findings and recommendations to be supported by the record and proper 4 analysis. 5 Out of an abundance of caution, the undersigned has reviewed plaintiff’s untimely 6 objections to the findings and recommendations. Nevertheless, the undersigned is not persuaded 7 by those objections. To the extent that plaintiff objects to the magistrate judge’s analysis of his 8 deliberate indifference claims, those objections are misplaced. (See Doc. No. 33 at 1–5.) The 9 undersigned notes that each of those objections are unnecessary mischaracterizations of the 10 magistrate judge’s analysis, particularly because the magistrate judge found that plaintiff has 11 stated cognizable deliberate indifference claims. (See Doc. No. 30 at 5–9.) Regarding the 12 recommended dismissal of his Americans with Disabilities Act (“ADA”) claims, plaintiff argues 13 that he did not intend to sue defendants in their individual capacities. (Doc. No. 33 at 5.)1 14 Plaintiff also argues that his mistake in that regard does not mean that defendant Akabike did not 15 commit ADA violations. This argument is unavailing. The magistrate judge noted, and the 16 undersigned agrees, that plaintiff “does not allege facts that show he was excluded from 17 participation in, or denied the benefits of, any service or programs offered by the prison because 18 of his disability, or that he was subjected to any type of discrimination by reason of his 19 disability.” (See Doc. No. 30 at 10.) 20 Accordingly, 21 1. The findings and recommendations issued on July 20, 2020 (Doc. No. 30) are 22 adopted in full; 23 24 1 In his objections plaintiff actually states that “plaintiff failed to list the [defendants] in their individual capacities.” (Doc. No. 33 at 5.) However, the findings and recommendations noted 25 that plaintiff’s claim is not cognizable in part because he does sue defendants in their individual capacities. (See Doc. No. 30 at 10); Vinson v. Thomas, 288 F.3d 1145, 1148 (9th Cir. 2002) 26 (holding that plaintiff could “not pursue a section 1983 claim against [defendant] in her individual 27 capacity for her alleged violation of either the ADA or the Rehabilitation Act”). In light of this finding, and out of an abundance of caution, the undersigned construes the objection as conveying 28 that plaintiff did not intend to sue defendants in their individual capacities. 1 2. The claims in plaintiff's third amended complaint—except for plaintiff's deliberate 2 indifference claims against defendants Akabike, Ceja, and Harris—are dismissed 3 without further leave to amend; 4 3. Defendant Sherman is dismissed from this action; 5 4. The Clerk of the Court is directed to change the title of this case to “Quezada v. 6 Akabike, et al.” in light of defendant Sherman’s dismissal; and 7 5. This case is referred back to the assigned magistrate judge for further proceedings. 8 | IT IS SOORDERED. a " 9 Li. wh F Dated: _ December 28, 2020 See 1" S98 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28