The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ADOPTING IN PART AND MODIFYING IN PART FINDINGS AND RECOMMENDATIONS (Document 14)
Plaintiff Eric Wheeler ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed his complaint on May 25, 2012. 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 11, 2013, the Court issued Findings and Recommendations that certain claims be found cognizable and the remainder be dismissed. Specifically, the Court found that Plaintiff's complaint states (1) a claim for excessive force in violation of the Eighth Amendment against Defendants Duck, Murrieta and Lowder; (2) a claim for failure to protect in violation of the Eighth Amendment against Defendants Duck, Murrieta, Lowder and Loftis; and (3) a claim for deliberate indifference to a serious medical in violation of the Eighth Amendment against Defendants Ross, Mui, Neubarth and Ancheta.*fn1
The Court further found that the complaint did not state a claim against Defendants Alison or Wu, did not state a claim under the Eighth or Fourteenth Amendment against Defendants Loftis, Lowder or Murrieta, an did not state any other Fourteenth Amendment claim.
The Findings and Recommendations were served on Plaintiff and contained notice that any objections to the Findings and Recommendations were to be filed within thirty days. Plaintiff filed objections on April 1, 2013.
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. Having carefully reviewed the entire file, including Plaintiff's objections, the Court issues the following additional analysis to address Plaintiff's objections.
Plaintiff does not object to the recommendation that Defendant Wu be dismissed. The Magistrate Judge's analysis is supported by proper legal analysis and the Court adopts this finding.
Plaintiff objects to the Magistrate's finding that he failed to demonstrate that Defendant Alison acted with deliberate indifference to a known or obvious danger that the alleged staffing decisions may subject him to harm. In his objections, Plaintiff cites to a 602 he filed on September 7, 2010. The appeal concerned the lack of staffing and safety issues in Facility G. The 602 was reviewed at the second level by Defendant Alison.
Although Plaintiff cited this 602 in his complaint, it was not immediately clear that it was reviewed by Defendant Alison. The 602 was part of over 200 pages of exhibits attached to his complaint. Upon review of his objections and the specific 602 at issue, the Court finds that Plaintiff has stated a claim against Defendant Alison and modifies the Findings and Recommendations in this regard.*fn2
C. Fourteenth Amendment Due Process Claims
The Magistrate Judge concluded that the Eighth Amendment, rather than the Fourteenth Amendment, provided the textual source of Plaintiff's claims of excessive force, failure to protect and deliberate indifference to a serious medical need. Plaintiff did not cite to a specific, separate due process violation in his complaint.
In his objections, Plaintiff points to allegations in his complaint that Defendants Loftis and Murrieta disclosed inmates' commitment offenses and confidential client/patient mental health information to other inmates and staff. He contends that staff "intentionally smutted the Plaintiff up" with the inmate who ultimately attacked him. He also points to his allegations that Defendant Alison failed to train staff in the disclosure of confidential information. ...