Colon v. Tilton et al

Filing 19

ORDER Adopting 18 FINDINGS AND RECOMMENDATIONS; ORDER FOR ACTION to Proceed only on Plaintiff's Fourteenth Amendment Claims, and DISMISSING Plaintiff's Eighth Amendment Claims signed by Chief Judge Anthony W. Ishii on 2/9/2010. (Sant Agata, S)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
D e fe n d a n ts James E. Tilton, I. D. Clay, W . Duncan, and M. Martinez were named by plaintiff in the original c o m p la in t but omitted by plaintiff in the First Amended Complaint, and these defendants are therefore dismissed from this a c tio n . (Docs. 1, 14.)
1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

GILBERT COLON, Plaintiff, vs. TILTON, et al., Defendants. _____________________________/

1:07-cv-01023-AWI-SMS-PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 18.) ORDER FOR ACTION TO PROCEED ONLY ON PLAINTIFF'S FOURTEENTH AMENDMENT CLAIMS, AND DISMISSING PLAINTIFF'S EIGHTH AMENDMENT CLAIMS

Gilbert Colon ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on July 18, 2008. (Doc. 1.) On February 24, 2009, plaintiff filed the First Amended Complaint upon which this case now proceeds. (Doc. 14.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 72-302. On November 19, 2009, findings and recommendations were entered, recommending that this action proceed on the First Amended Complaint, on plaintiff's Fourteenth Amendment claims only, against defendants Assistant Warden M. Sullivan, Captain M. Martin, J. Tennison (CCII), M. Cooper (CCII), and S. Hay (CCI), and that plaintiff's Eighth Amendment claims be dismissed.1 Plaintiff was provided an opportunity to file objections to the findings and

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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 73305, 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 November 19, 2009, are adopted in full; 2. This action now proceeds on the First Amended Complaint filed February 24, 2009, on plaintiff's claims for violation of his rights under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, against defendants Assistant Warden M. Sullivan, Captain M. Martin, J. Tennison (CCII), M. Cooper (CCII), and S. Hay (CCI); 3. 4. All other claims and defendants are dismissed from this action; Plaintiff's claims for violation of his rights under the Eighth Amendment are dismissed from this action for failure to state a claim upon which relief may be granted under § 1983; 5. The Clerk is directed to add these four (4) defendants to the Court's Docket: Captain M. Martin J. Tennison (CCII) M. Cooper (CCII) S. Hay (CCI); /// /// /// /// 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

6.

The Clerk is directed to reflect the dismissal of these four (4) defendants on the Court's Docket: James E. Tilton I. D. Clay W. Duncan M. Martinez; and

7.

The Magistrate Judge shall issue an order commencing the service process in this action.

IT IS SO ORDERED. Dated: 0m8i78 February 9, 2010 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE

3