(PS) Manning v. United States

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA ANTHONY L. MANNING, No. 2:19-cv-00494-TLN-AC 12 Plaintiff, 13 v. ORDER UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

17 Plaintiff Anthony L. Manning (“Plaintiff”), proceeding pro se, has filed this action pursuant to the Federal Tort Claims Act (“FTCA”). The matter was referred to a United States Magistrate Judge pursuant to Local Rule 302(c)(21).

20 On September 20, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. (ECF No. 29.) On September 24, 2019, Plaintiff filed his “Objections to Magistrate Judge’s Findings and Recommendations.” (ECF No. 30.) On October 8, 2019, Defendant the United States1 /// The Court notes Plaintiff initially sued the United States Department of Veterans Affairs but the proper defendant under the FTCA in this action is the United States. See Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (per curiam). As noted herein, the docket shall be corrected accordingly.

1 (“Defendant”) filed a “Response to Plaintiff’s Objections to Findings and Recommendations.”

2 (ECF No. 31.)

3 This Court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As to any portion of the proposed findings of fact to which no objection has been made, the Court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

10 Having carefully reviewed the entire file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge’s analysis.

13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The Findings and Recommendations, filed September 20, 2019 (ECF No. 29), are adopted in full; 16 2. Defendant’s Motion to Dismiss (ECF No. 16) is GRANTED IN PART AND DENIED IN PART as follows: 18 a. DENIED as to Plaintiff’s claim of medical negligence by Dr. Amy Fuglei; and 19 b. GRANTED as to Plaintiff’s claim that Defendant failed to provide adequate treatment related to sleep apnea and related respiratory issues; and 21 3. The Clerk of the Court is directed to substitute the United States of America as the sole Defendant in this case.

23 IT IS SO ORDERED.

24 Dated: November 12, 2019