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Anthony Jones v. E. Mcatee

September 28, 2012

ANTHONY JONES,
PLAINTIFF,
v.
E. MCATEE, ET AL., DEFENDANTS.



ORDER

Plaintiff, a prisoner proceeding pro se, brings this civil rights action seeking relief pursuant to 42 U.S.C. § 1983. 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 August 13, 2012, the Magistrate Judge issued findings and recommendations, recommending that: (1) Defendants' motion to dismiss, ECF Nos. 53, 55, be granted; (2) Plaintiff be required to pay $1,650.00 in monetary sanctions; and (3) Plaintiff's motion for default, ECF No. 59, be denied.

The findings and recommendations were served on all parties and contained notice that the parties may file objections within fourteen days. Plaintiff has filed timely objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. 636(b)(1)(c) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court declines to adopt the findings and recommendations in this case for the reasons provided below.

I. BACKGROUND

A. Plaintiff's Complaint

Plaintiff Anthony Jones makes the following factual allegations in his first amended civil rights complaint.*fn1

Plaintiff alleges that the Sacramento County Sheriff's Department and six of its officers employed excessive force in executing Plaintiff's arrest in violation of his Fourth, Eighth, and Fourteenth Amendment rights. His claims arise out of his arrest on March 9, 2009, when Plaintiff was attempting to flee from a garden tool shed in the backyard of the residence located at 5125 Atlanta Way in Sacramento, CA. Plaintiff claims that he was shot by Deputy E. McAtee as he ran from the shed and was struck in the back and neck. Plaintiff was subsequently "brought down" by Deputy B. Amos's canine partner, Jesse. Deputy D. Amos then kicked Plaintiff several times in the face and arms, and Sgt. C. Turner struck him several times with a flashlight. Plaintiff further alleges that Deputy D. Amos allowed the canine to "chew on [Plaintiff's] leg for no less than 45-40 seconds" after he had been handcuffed. The remaining officers on the scene, Deputies Hrabak and Rhalf, witnessed the other officers' actions, but did nothing to stop them.

Plaintiff claims that as a result of being shot, he sustained a broken left shoulder blade, fractured ribs, and partial facial paralysis. As a result of the canine bite, Plaintiff claims that he is disfigured, that his calf is swollen, and that it causes him pain daily.

B. Intervening Proceedings

On July 30, 2010, the Magistrate Judge found that Plaintiff had "not stated a plausible claim against [D]efendant McAtee," and recommended that Defendant McAtee be dismissed.

Findings & Recommendations, ECF No. 18. By order issued November 30, 2010, this court declined to adopt the Magistrate Judge's findings and determined that Defendant McAtee was not to be dismissed from the instant action. Order, ECF No. 27.

On August 26, 2010, Plaintiff filed a motion for assistance of counsel. Pl's Mot., ECF No. 20. Plaintiff asserted that, due to his "lack of legal knowledge" and "lack of law library exposure," it would be impossible for him to follow the orders of the court without legal assistance. Id. Plaintiff's motion was denied by the Magistrate Judge on August 31, 2010. Order, ECF No. 22.

On November 3, 2010, Plaintiff renewed his motion for assistance of counsel, arguing that he is "a mental health patient at a California Medical Health Facility/Mental Health Crisis Bed Facility," he "doesn't know when he'll be released from mental health's services," and he is "currently taking psychiatric medications, and is diagnosed with severe depression among other illnesses." Pl's ...


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