(PC) Howard v. Kern County Lerdo Facility Medical Cheif ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY HOWARD, Case No. 1:21-cv-00931-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIMS AND DEFENDANT 13 v. 14 KERN COUNTY LERDO FACILITY 14-DAY OBJECTION PERIOD MEDICAL CHIEF, et al., 15 Clerk of the Court to Assign District Judge Defendants. 16 17 Plaintiff Billy Howard is a state prisoner1 proceeding pro se in this civil rights action 18 brought pursuant to 42 U.S.C. § 1983. 19 On November 10, 2022, the Court screened Plaintiff’s complaint and found that it states 20 cognizable claims of deliberate indifference to serious medical needs against the facility nursing 21 staff defendants. (Doc. 16 at 6-7.) Further, the Court found Plaintiff’s complaint did not state a 22 cognizable claim against defendant chief medical director. (Id. at 7.) The Court therefore directed 23 Plaintiff to file a first amended complaint curing the deficiencies in his pleading or to notify the 24 Court that he wishes to proceed only on the claims found cognizable. (Id. at 7-9.)2 25 1 At the time he filed his complaint, Plaintiff was housed at the state prison in Chino. (Doc. 1.) In his 26 fourth notice of change of address, dated September 26, 2022, Plaintiff indicates he is presently housed at the Kern County Jail’s pre-trial detention facility. (Doc. 14.) 27 2 Plaintiff was previously advised concerning the use of Doe defendants and the need to identify Doe defendants before service of his complaint can be accomplished. (See Doc. 16 at 7, n.2 & 8.) The Court 1 On December 1, 2022, Plaintiff filed a notice that he elects “to push forward without 2 || amendments” and to proceed on the “cognizable deliberate indifference to serious medical needs 3 | claim.” (Doc. 17.) Accordingly, and for the reasons set forth in the Court’s screening order (Doc. 4 | 16), the Court RECOMMENDS that: 5 1. Doe Defendant Chief Medical Director be DISMISSED; and, 6 2. The claims in Plaintiff's complaint be DISMISSED, except for the deliberate 7 indifference to serious medical needs claims against facility nursing staff, pursuant to 8 42 U.S.C. § 1983; and 9 3. The Clerk of the Court is directed to randomly assign a district judge to this action. 10 These Findings and Recommendations will be submitted to the United States District 11 | Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(). Within 14 days of the date of 12 | service of these Findings and Recommendations, Plaintiff may file written objections with the 13 | Court. The 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. 8 Dated: _ December 5, 2022 | Ww VV KD 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28