(PC) Rhodes v. Ruiz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PERCY LEE RHODES, Case No. 1:21-cv-00942-JLT-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO CORRECT SCRIVINER’S ERROR 13 v. AND TO REINSTATE CERTAIN CLAIMS 14 JOSEPH RUIZ, et al., AGAINST DEFENDANT McCOMAS 15 Defendants. 14-DAY OBJECTION PERIOD 16 17 Plaintiff Percy Lee Rhodes is a former pretrial detainee proceeding pro se and in forma 18 pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT BACKGROUND 20 On December 6, 2022, the Court screened Plaintiff’s complaint addressing the five claims 21 asserted against various defendants. (Doc. 9.) Ultimately, the Court directed Plaintiff to do one of 22 the following: (1) notify the Court in writing that he does not wish to file a first amended 23 complaint and that he is willing to proceed only on his claims for deliberate indifference to 24 serious medical need against Defendants Ruiz, Lightner and McComas, and the denial of access 25 to courts against Defendant Cortez; or (2) file a first amended complaint curing the deficiencies 26 identified in the screening order; or (3) file a notice of voluntary dismissal. (Id. at 22.) In 27 response, Plaintiff filed notice that he did not wish to file an amended complaint and instead wished to proceed on the claims found cognizable. (Doc. 10.) 1 Thereafter, on January 4, 2023, the Court issued Findings and Recommendations to 2 Dismiss Certain Claims and Defendants. (Doc. 12.) Those findings were adopted on January 27, 3 2023, by the district judge. (Doc. 13.) The Court then ordered service of the complaint.1 (Doc. 4 14.) 5 On June 20, 2023, the Court issued an Amended Order Adopting Findings and 6 Recommendations to Dismiss Certain Claims and Defendants. (Doc. 21.) In particular, the order 7 corrected a scrivener’s error concerning claims against Defendant Lightner. (Id. at 2.) The 8 Findings and Recommendations were adopted in part, Defendants Blair, Curran, Freitas, Huron, 9 Padilla and Ward were dismissed, and the action was ordered to proceed on the following claims: 10 (1) deliberate indifference to serious medical needs claims against Defendants Ruiz, Lightner and 11 McComas, (2) an access to courts claim against Defendant Cortez, and (3) failure to protect and 12 failure to train claims against Defendant Lightner. (Id. at 2-3.) 13 It has since come to the Court’s attention that another scrivener’s error requires correction. 14 II. DISCUSSION 15 In the First Screening Order, the undersigned also found Plaintiff had plausibly alleged 16 failure to protect and failure to train claims against Defendant McComas. (See Doc. 9 at 20.) 17 Unfortunately, those claims were mistakenly omitted in the “Conclusion and Order” section of 18 the screening order. (Id. at 21-22.) Therefore, when the Court subsequently issued the Findings 19 and Recommendations to Dismiss Certain Claims and Defendants, the failure to protect and 20 failure to train claims against Defendant McComas were encompassed as claims recommended 21 for dismissal. As a result, cognizable claims against Defendant McComas were dismissed in 22 error. Therefore, the failure to protect and failure to train claims against Defendant McComas 23 should be permitted to proceed in this action in accordance with the determination made in the 24 Court’s First Screening Order. 25 III. CONCLUSION AND ORDER 26 Accordingly, and for the reasons set forth above, the Court RECOMMENDS that: 27 1. The failure to protect and failure to train claims asserted against Defendant McComas, 1 pursuant to 42 U.S.C. § 1983, be permitted to proceed in this action; and 2 2. Defendants be granted a 30-day extension of time to file a responsive pleading 3 addressing all cognizable claims identified herein in the event these findings are 4 adopted by the assigned district judge. 5 For the sake of clarity, in the event these findings are adopted by the assigned district 6 | judge, this action would proceed on the following claims: (a) deliberate indifference to serious 7 | medical needs claims against Defendants Ruiz, Lightner, and McComas; (b) an access to courts 8 | claim against Defendant Cortez; (c) failure to protect and failure to train claims against Defendant 9 | Lightner; and (d) failure to protect and failure to train claims against Defendant McComas. 10 These Findings and Recommendations will be submitted to the district judge assigned to 11 | this case, pursuant to 28 U.S.C. § 636(b)(1). Within 14 days of the date of service of these 12 | Findings and Recommendations, a party may file written objections with the Court. The 13 | document should be captioned, “Objections to Magistrate Judge’s Findings and 14 | Recommendations.” Failure to file objections within the specified time may result in waiver of 15 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 16 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 | IT IS SO ORDERED. 'S |) Dated: _ June 26, 2023 | Wr bo 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28