(PC) Scott v. Chau ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY LEON SCOTT, Case No. 1:19-cv-01079-ADA-HBK (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATION 13 v. (ECF No. 29) 14 B. JOHNSON, et al., 15 Defendants. 16 17 Plaintiff Ricky Leon Scott (“Plaintiff”) initiated this action as a prisoner proceeding pro se 18 and in forma pauperis by filing a civil rights complaint under 42 U.S.C. §1983 on August 5, 19 2019. (ECF No. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 20 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 18, 2022, the Magistrate Judge filed Findings and Recommendations, 22 which were served on Plaintiff and contained notice that objections to the Findings and 23 Recommendations were to be filed within fourteen days. (ECF No. 29). The Magistrate Judge 24 screened Plaintiff’s Second Amended Complaint and recommend that Plaintiff may proceed with 25 an Eighth Amendment medical deliberate indifference claim against Defendant Chau, but the 26 Court must dismiss all other non-cognizable claims and Defendants. (Id.). Plaintiff filed 27 Objections on December 13, 2022. (ECF No. 30.) 28 /// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 2 de novo review of this case. Having carefully reviewed the entire file, the Court finds the 3 Findings and Recommendations to be supported by the record and by proper analysis. 4 In his objections, Plaintiff argues that his procedural due process rights have been 5 violated, relying on Sandin v. Conner, 515 U.S. 472 (1995). However, Plaintiff erroneously relies 6 on Sandin because Plaintiff does not present the “type of atypical, significant deprivation in 7 which a State might conceivably create a liberty interest.” Sandin, 515 U.S. at 486. Plaintiff 8 alleges that Defendants filed a false Rules Violation Report against him, but Plaintiff fails to 9 allege any facts that the false report was filed in retaliation for Plaintiff’s exercise of a 10 constitutional right or that Plaintiff was not afforded the procedural due process in a proceeding 11 concerning a false report. See Richard v. Tuman, No. 1:18-CV-01166-EPG-PC, 2019 WL 12 669569, at * 6 (E.D. Cal. Feb. 19, 20291). Plaintiff’s exhibit attached to the complaint 13 demonstrates that he had a hearing, an opportunity to call witnesses and appear at his hearing on 14 the false report. (ECF No. 29 at 8-9.) Therefore, Plaintiff’s case does not present the same or 15 similar circumstances as in Sandin v. Conner. 16 The Court further agrees with the Magistrate Judge that Plaintiff fails to allege sufficiently 17 a claim of ADA because Plaintiff fails to explain that he was excluded from participation in or 18 denied the benefits of the services, programs, or activities of a public entity due to his alleged 19 disability. (ECF No. 29 at 6-7.) Therefore, the Court dismisses all claims, other than the Eighth 20 Amendment medical deliberate indifference claim against Defendant Chau, and Defendants form 21 this action based on Plaintiff’s failure to state claims upon which relief may be granted. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly, 2 1. The Findings and Recommendations, (ECF No. 29), filed on November 18, 2022, are 3 adopted in full. 4 5 6 | TPIS SO ORDERED. 7 Dated: _ January 25, 2023 UNITED $TATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28