UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 19, 2012
GERALD A. WEST,
FEDERAL BUREAU OF PRISONS, ET AL.,
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN DEFENDANTS AND DENIAL OF PLAINTIFF'S DISCOVERY MOTIONS FOR DISMISSED DEFENDANT Docs. 51, 52, 57
On July 22, 2009, Plaintiff Gerald A. West, a federal prisoner proceeding pro se and in forma pauperis, filed a complaint against Defendants employed by the United States Penitentiary in Atwater, California ("USP Atwater"),*fn1 pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Doc. 1. On August 27, 2010, Plaintiff filed a third amended complaint, naming only Doe Defendants. Doc. 25. On February 15, 2011, the Court dismissed certain claims and directed the action to proceed against Doe Defendants for Eighth Amendment failure to protect. Doc. 28. On May 3, 2011, the Court granted Plaintiff's motion to conduct limited discovery, for the sole purpose of identifying Doe Defendants, and ordered Plaintiff to identify Doe Defendants within 120 days. Doc. 33. On July 26, 2011, the Court directed service of a subpoena to the warden of USP Atwater, for the limited discovery of identifying Doe Defendants. Doc. 45. On August 25, 2011, the Bureau of Prisons ("BOP") submitted a response to Plaintiff's subpoena. Doc. 49. On March 7, 2012, Plaintiff filed his fourth amended complaint, identifying two of the three Doe Defendants. Doc. 56. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 15, 2012, the Magistrate Judge issued Findings and Recommendations, recommending dismissal of certain defendants and denial of Plaintiff's discovery motions for dismissed Doe defendant. Doc. 57. On April 2, 2012, Plaintiff filed Objections. Doc. 58.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. This action proceed on Plaintiff's fourth amended complaint, filed March 7, 2012, against Defendant McNease, for failure to protect in violation of the Eighth Amendment;
2. Plaintiff's claim against Doe Defendant 3 is DISMISSED, without prejudice, for failure to serve Doe Defendant 3 within the 120-day period prescribed by Rule 4(m) of the Federal Rules of Civil Procedure;
3. Plaintiff's motion for further discovery regarding Doe Defendant 3 is DENIED;
4. Plaintiff's motion for additional subpoena regarding Doe Defendant 3 is DENIED;
5. Plaintiff's claims against Defendants Zaragoza, Federal Bureau of Prisons, and the United States are DISMISSED, with prejudice, for failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983; and
6. This matter is referred back to the Magistrate Judge to initiate service of process proceedings.
IT IS SO ORDERED.