UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 8, 2011
SHANNON L. AVERY, SR.,
CDCR DIRECTOR, ET AL.,
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 75.) ORDER FOR THIS ACTION TO PROCEED ON THE SECOND AMENDED COMPLAINT AGAINST DEFENDANT AMAYA FOR RETALIATION, DEFENDANT GONZALES FOR INADEQUATE MEDICAL CARE AND FAILURE TO PROTECT, DEFENDANT BASCOM FOR EXCESSIVE FORCE, AND ON PLAINTIFF'S RELATED STATE TORT CLAIMS, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM (Doc. 69.)
Shannon L. Avery. Sr. ("Plaintiff") is a former state prisoner proceeding pro se in this civil rights action 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 April 14, 2011, findings and recommendations were entered, recommending that this action proceed on the Second Amended Complaint against defendant Amaya for retaliation, defendant Gonzales for inadequate medical care and failure to protect, defendant Bascom for excessive force, and on Plaintiff's related state tort claims, and that all other claims be dismissed for failure to state a claim. Plaintiff was provided an opportunity to file objections to the findings and recommendations within thirty days. To date, Plaintiff has not filed objections or otherwise responded to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 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 proper analysis.
Accordingly, THE COURT HEREBY ORDERS that:
1. The Findings and Recommendations issued by the Magistrate Judge on April 14, 2011, are adopted in full;
2. This action now proceeds with the Second Amended Complaint filed on July 20, 2010, on the claims found cognizable by the Court against defendant C/O J. Amaya for retaliation under the First Amendment; against defendant C/O G. Gonzales for inadequate medical care and for failure to protect Plaintiff, in violation of the Eighth Amendment; against defendant C/O Bascom for use of excessive force in violation of the Eighth Amendment, assault, and battery; and on Plaintiff's related state tort claims;
3. This action now proceeds for money damages only as relief; 4. All remaining claims and defendants are dismissed from this action based on Plaintiff's failure to state a claim upon which relief may be granted under § 1983;
5. Plaintiff's claims for supervisory liability, conspiracy, verbal harassment, failure to intercede, due process, mayhem, for staring at Plaintiff, and for withholding water from Plaintiff, are dismissed from this action based on Plaintiff's failure to state a claim upon which relief may be granted under § 1983;
6. Defendants Hubbard, Mendoza-Powers, Ndoh, Pennywell, Lu, Kaur, Suryadevara, Alfaro, McGraw, Ramos, Weinstein, and Hill are dismissed from this action based on Plaintiff's failure to state any claims upon which relief may be granted against them under § 1983; and
7. The Clerk is directed to reflect on the Court's docket:
(1) the dismissal of defendants Director of CDCR, Ramos, Alfaro, McGraw, Pennywell, Summers, Mendoza-Powers, Kaur, Suryadevara, and Lu from this action; and
(2) the addition of defendant Bascom to this action.
IT IS SO ORDERED.
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