Moten v. Adams et al
Filing
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ORDER Adopting FINDINGS AND RECOMMENDATIONS And Dismissing Claims Against All Defendants Other Than J. Gonzales (ECF Nos. 55 , 56 , 57 & 58 ), signed by Chief Judge Anthony W. Ishii on 5/17/2011. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JESSE MOTEN,
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CASE NO. 1:07-cv-924-AWI-MJS (PC)
Plaintiff,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CLAIMS AGAINST ALL DEFENDANTS
OTHER THAN J. GONZALES
v.
DERREL G. ADAMS, et al.,
(ECF Nos. 55, 56, 57 & 58)
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Defendants.
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Plaintiff Jesse Moten, a state prisoner proceeding pro se and in forma pauperis, has filed this
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civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On March 17, 2011, the Magistrate Judge filed a Findings and Recommendation
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recommending that all Defendants other than J. Gonzales be dismissed from this action. The
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Magistrate Judge screened Plaintiff’s Second Amended Complaint, filed on March 11, 2011, and
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found that Plaintiff had stated a cognizable claim for use of excessive force against Defendant
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Gonzales but had failed to state a claim in all other respects and against all other Defendants.
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Plaintiff has filed objections to the Findings and Recommendation arguing that he stated a claim in
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other respects as well.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings
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and Recommendations to be supported by the record and by proper analysis. Contrary to Plaintiff’s
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allegations in the objections, the Magistrate Judge correctly screened the complaint pursuant to 28
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U.S.C. § 1915A. To the extent Plaintiff know is trying to bring additional facts to the court’s
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attention by submitting an affidavit along with his objections, Plaintiff has been given numerous
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opportunities to amend his complaint and state a claim and no further amendment will be given at
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this time. See Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (if court determines that complaint
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fails to state claim, leave to amend should be granted once to extent that complaint's deficiencies can
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be cured).
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The Findings and Recommendations, filed March 17, 2011, is adopted;
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2.
Plaintiff has stated a cognizable claim against Defendant J. Gonzales for use of
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excessive force in violation of the Eighth Amendment and such claim remains
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pending in this action;
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3.
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WITH PREJUDICE for failure to state a claim upon which relief can be granted;
4.
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All other claims brought in Plaintiff’s Second Amended Complaint are DISMISSED
All Defendants other than J. Gonzales are DISMISSED as party-Defendants in this
action;
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Service shall be ordered on Defendant J. Gonzales.
IT IS SO ORDERED.
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Dated:
0m8i78
May 17, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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