(PC) Garcia v. Baniga

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA

11 JOSE GARCIA, 1:19-cv-01258-AWI-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION 13 v. PROCEED ONLY AGAINST DEFENDANT DR. RODRIGUEZ FOR INADEQUATE U. BANIGA, M.D., et al., MEDICAL CARE UNDER THE EIGHTH AMENDMENT, AND THAT ALL OTHER 15 Defendants. CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN 14 DAYS

23 Jose Garcia (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On September 10, 2019, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) The Complaint names as defendants Plaintiff names as defendants Dr. U. Baniga, Dr. Rodriguez, California Correctional Health Care Services (CCHCS), and Does #1-5 (Medical Provider Policy Makers) (collectively, “Defendants”), and brings claims for inadequate medical care under the Eighth Amendment, for creating or implementing a flawed policy, for retaliation, and for improperly handling Plaintiff’s prison appeals.

3 The court screened the Complaint and found that Plaintiff states a cognizable claim against defendant Dr. Rodriguez for failure to provide adequate medical care under the Eighth Amendment, but no other claims against any of the Defendants. (ECF No. 8.) On September 23, 2019, the court issued a screening order requiring Plaintiff to either (1) file an Amended Complaint, or (2) notify the court that he is willing to proceed only with the medical claim against defendant Dr. Rodriguez found cognizable by the court. (Id.) 9 On October 7, 2019, Plaintiff notified the court that he is willing to proceed only with the medical claim found cognizable by the court. (ECF No. 12.)

11 Based on the foregoing, it is HEREBY RECOMMENDED that: 12 1. This action proceed only on Plaintiff’s claim against defendant Dr. Rodriguez for 13 failure to provide adequate medical care under the Eighth Amendment; 14 2. All remaining claims and defendants be dismissed from this action; 15 3. Plaintiff’s claims against Defendants for creating or implementing a flawed 16 policy, for retaliation, and for improperly handling Plaintiff’s prison appeals be 17 dismissed from this action based on Plaintiff's failure to state any claims upon 18 which relief may be granted; 19 4. Defendants Dr. U. Baniga, California Correctional Health Care Services 20 (CCHCS), and Does #1-5 (Medical Provider Policy Makers) be dismissed from 21 this action based on Plaintiff’s failure to state any claims against them upon which 22 relief may be granted; and 23 5. This case be referred back to the Magistrate Judge for further proceedings, 24 including initiation of service of process.

25 These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order.

3 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

6 Dated: October 10, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE