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Stephon Butler v. Matthew Cate

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 5, 2011

STEPHON BUTLER,
PLAINTIFF,
v.
MATTHEW CATE, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; DISMISSING DUE PROCESS CLAIM; DISMISSING DEFENDANTS CATE, CLAY, SMITH AND SEMSEN; AND DIRECTING THAT ACTION PROCEED ON EQUAL PROTECTION CLAIM AGAINST DEFENDANT ESQUER (Docs. 11 and 14)

Plaintiff Stephon Butler, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 27, 2009. 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 May 6, 2011, the Magistrate Judge screened Plaintiff's amended complaint and recommended that this action proceed against Defendant Esquer on Plaintiff's equal protection claim and that Plaintiff's due process claim and Defendants Cate, Clay, Smith and Semsen based on Plaintiff's failure to state a claim. 28 U.S.C. § 1915A. Plaintiff had thirty days within which to file an objection, if any, and he did not file one.

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. The Court adopts the Findings and Recommendations filed on May 6, 2011, in full;

2. This action shall proceed on Plaintiff's amended complaint, filed March 17, 2010, against Defendant Esquer on Plaintiff's equal protection claim;

3. Plaintiff's due process claim is dismissed, with prejudice, for failure to state a claim under section 1983;

4. Defendants Cate, Clay, Smith and Semsen are dismissed from this action based on Plaintiff's failure to state any claims against them; and

5. This matter is referred back to the Magistrate Judge for further proceedings.

IT IS SO ORDERED.

20110705

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