1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM TILLMAN, No. 2:22-cv-01997-DAD-EFB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING IN FULL FINDINGS

AND RECOMMENDATIONS AND

14 STATE OF CALIFORNIA, et al., DISMISSING CERTAIN CLAIMS AND

DEFENDANTS

15 Defendants. (Doc. No. 12) 16 17 18 Plaintiff William Tillman is a state prisoner proceeding through counsel in this civil rights 19 action brought pursuant to 42 U.S.C. § 1983.1 The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On June 18, 2024, the assigned magistrate judge screened plaintiff’s second amended 22 complaint and issued findings and recommendations recommending that this action “proceed on 23 the Eighth Amendment claims and state tort claims for battery and intentional infliction of 24 emotional distress, as set forth above, against defendants Drake and Nardy,” and that all other 25 claims and defendants be dismissed from this action without prejudice due to plaintiff’s failure to 26 state a claim. (Doc. No. 12 at 3–4.) 27 1 On November 4, 2022, defendants removed this action from the Amador County Superior 28 Court to this federal court. (Doc. No. 1.) 1 The pending findings and recommendations were served on the parties and contained 2 notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 3 4.) To date, no objections to the findings and recommendations have been filed, and the time in 4 which to do so has now passed. 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 6 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 7 findings and recommendations are supported by the record and by proper analysis.2 8 Accordingly: 9 1. The findings and recommendations issued on June 18, 2024 (Doc. No. 12) are 10 adopted in full; 11 2. This action shall proceed only on plaintiff’s Eighth Amendment claim asserted 12 against defendants Drake and Nardy; plaintiff’s claim for battery and violation of 13 the Tom Bane Civil Rights Act, California Civil Code § 52.1, asserted against 14 defendant Drake; and plaintiff’s claim for intentional infliction of emotional 15 distress asserted against defendants Drake and Nardy; 16 3. All other claims brought by plaintiff in this action are dismissed without prejudice 17 to refiling in a separate action or actions; 18 ///// 19 2 The pending findings and recommendations are arguably unclear as to whether it is 20 recommended that this action also proceed on plaintiff’s claim for violation of the Bane Act, California Civil Code § 52.1, asserted against defendant Drake. (See Doc. No. 11 at ¶¶ 95–104 21 (asserting a “fourth claim . . . for battery/rape, Bane Act violation”); Doc. No. 12 at 3 (“Claim 4 for battery against Drake is clearly related to the case at issue . . . . In sum, state-law Claims 4 22 and 6 may go forward against defendants Drake and Nardy . . . .”); id. (recommending that this 23 action proceed only on “the Eighth Amendment claims and state tort claims for battery and intentional infliction of emotional distress”)). Out of an abundance of caution, the court clarifies 24 that plaintiff’s allegations in his second amended complaint are sufficient to state a cognizable claim against Drake for intentionally “interfer[ing] by threat, intimidation, or coercion” with a 25 state or federal constitutional or legal right, in violation of the Bane Act. Cal. Civ. Code § 52.1; see Doe v. Johnson, No. 2:24-cv-01542-DJC-AC, 2024 WL 4437817, at *4 (E.D. Cal. Oct. 7, 26 2024) (finding that the plaintiff had sufficiently alleged a Bane Act claim against the defendant 27 where the plaintiff, a prisoner, had alleged that the defendant, her supervisor, had sexually abused her); Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (noting that prisoners have an 28 Eighth Amendment right “to be free from sexual abuse”). 1 4. Defendants State of California, CDCR, Perez, A. Stinson, M. Azhar, P. Gann, 2 Baca, B. Louie, and S. Reynolds are dismissed as defendants in this action; 3 5. The Clerk of the Court is directed to update the docket to reflect that defendants 4 State of California, CDCR, Perez, A. Stinson, M. Azhar, P. Gann, Baca, B. Louie, 5 and S. Reynolds have been terminated from this action; and 6 6. This matter is referred back to the magistrate judge for further proceedings 7 consistent with this order. 8 IT IS SO ORDERED. ” | Dated: _ November 26, 2024 Dab A. 2, sxe 10 DALE A. DROZD

UNITED STATES DISTRICT JUDGE

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