Opinion
Case No.: 1:17-cv-00569-LJO-BAM (PC)
11-03-2017
CHRISTOPHER LIPSEY, JR., Plaintiff, v. DR. REDDY, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, (ECF No. 32), AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS FOR THE FAILURE TO STATE A COGNIZABLE CLAIM
Plaintiff Christopher Lipsey is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.
On October 23, 2017, the Magistrate Judge issued findings and recommendations recommending that this action proceed against Defendants Hernandez, Celedon, and Mancilla for excessive force in violation of the Eighth Amendment, but that all other claims and defendants should be dismissed for Plaintiff's failure to state a claim upon which relief may be granted. (ECF No. 32.) The findings and recommendations were served on Plaintiff and contained notice that any objections must be filed within fourteen days after service of that order. (Id. at 8.) On November 2, 2017, Plaintiff timely filed objections. (ECF No. 33.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case and carefully reviewed the entire file, including Plaintiff's objections. The Court finds that the findings and recommendations are supported by the record and by proper analysis.
Plaintiff objects that he stated a claim under California's Bane Act, which provides a private right of action against a person or persons who interfere by "threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state[.]" Cal. Civ. Code § 52.1(a). Plaintiff asserts that he sufficiently pleaded Defendants strip searched him and assaulted him to coerce and intimidate him out of seeking medical care, as part of a "hate crime" against him seeking assistance for his suicidal ideations. On the contrary, these factual allegations do not appear in Plaintiff's pleading.
More importantly, these allegations contradict Plaintiff's current allegations. Plaintiff has consistently pleaded that he was strip searched because one of the officers claimed to see contraband on Plaintiff, and that he was assaulted because he ridiculed the officers for not finding anything during their search. Pro se plaintiffs are entitled to a liberal construction of their pleadings, and clarifications are permitted. However, Plaintiff cannot attempt to contradict his prior factual assertions merely for the purpose of attempting to state a claim.
Plaintiff's additional objections regarding supervisory liability and immunity under Cal. Gov't Code § 844.6 also have no merit.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. The findings and recommendations dated October 23, 2017 (ECF No. 32) are adopted in full;
2. This action proceeds on Plaintiff's claim against Defendants Hernandez, Celedon, and Mancilla for excessive force in violation of the Eighth Amendment;
3. All other claims and defendants are dismissed for the failure to state a claim upon which relief may be granted; and
4. This matter is referred back to the assigned Magistrate Judge for further proceedings consistent with this order.IT IS SO ORDERED.
Dated: November 3 , 2017
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE