(PC) Gelazela v. United States of America ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 MARK A. GELAZELA, Case No. 1:22-cv-01540 JLT SKO (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS FOLLOWING 12 v. SCREENING OF PLAINTIFF’S SECOND AMENDED COMPLAINT 13 UNITED STATES OF AMERICA, et al., 14 Defendants. 15 16 Mark A. Gelazela seeks to hold Defendants liable for civil rights violations pursuant to 42 17 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 18 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 The assigned magistrate judge issued findings and recommendations following screening 20 of Plaintiff’s second amended complaint, recommending that: (1) Plaintiff’s Bivens claims against 21 all named Defendants be dismissed without leave to amend; (2) Plaintiff’s state law or “CTCA” 22 claims against all Defendants be dismissed without leave to amend; (3) Defendants Warden 23 Douglas White, Case Manager K. Lehman, Correctional Officer Alcantor, Mendota FCI and the 24 Bureau of Prisons be dismissed from this action; and (4) Plaintiff be granted leave to amend his 25 Federal Tort Claims Act claims against Defendant United States of America, by filing a third 26 amended complaint within 30 days should the findings be adopted by the assigned district judge. 27 (Doc. 20.) The Court advised any objections were due within fourteen days and that the failure to 28 file objections within this time “may result in waiver of his rights on appeal.” (Id. at 24-25, citing 1 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 2 | (9th Cir. 1991).) Rather than filing objections, Plaintiff filed a third amended complaint and a 3 | Notice to Court Regarding Third Complaint for Damages. (Docs. 21, 22.) 4 According to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of this 5 | case. Having carefully reviewed the matter, the Court concludes the findings and 6 || recommendations are supported by the record and proper analysis. Accordingly, the Court 7 | ORDERS: 8 1. The Findings and Recommendations issued on September 12, 2023 (Doc. 20) are 9 ADOPTED in full. 10 2. Plaintiff's Bivens claims against all named Defendants are DISMISSED without leave 11 to amend. 12 3. Plaintiff's state law or “CTCA” claims against all Defendants are DISMISSED 13 without leave to amend. 14 4. The following Defendants are DISMISSED from this action: 15 a. Warden Douglas White 16 b. Case Manager K. Lehman 17 c. Correctional Officer Alcantor 18 d. Mendota FCI 19 e. Bureau of Prisons 20 5. Because Plaintiff has filed a third amended complaint (Doc. 21), this matter is referred 21 back to the assigned magistrate judge for screening of the third amended complaint 22 consistent with this order. 23 IT IS SO ORDERED. 5 Dated: _ September 27, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 26 27 28