Jones et al v. California Department of Corrections et al

Filing 44

ORDER Adopting Findings and Recommendation Dismissing With Prejudice, Certain Claims Found to Be Not Cognizable 40 , signed by District Judge Lawrence J. O'Neill on 5/13/11. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK ANTHONY JONES,

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Plaintiff,
v.
CALIFORNI A DE P A RT MENT
CORRECTIONS, et al.,

CASE NO.

ORDER ADOPTING FINDINGS AND
RECOMMENDATION DISMISSING, WITH
PREJUDICE, CERTAIN CLAIMS FOUND TO
OF BE NOT COGNIZABLE

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1:08-cv-00069-LJO-GBC (PC)

(ECF No. 40)
Defendants.
/

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ORDER
Plaintiff Mark Anthony Jones (“Plaintiff”), a state inmate, is proceeding pro se and
in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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Co-Plaintiffs Christine Jones and Mark Jones originally filed this action in the

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Northern District of California. It was then transferred to the Eastern District of California

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on January 14, 2008. (ECF No. 1.) On September 16, 2008, the Court severed the Co-

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Plaintiffs’ claims and directed the Clerk to open a new action for Christine Jones. (ECF No.
11.) As a result, Mark Jones proceeded in this case (1:08-cv-00069-LJO-GBC), and

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Christine Jones proceeded in case 1:08-cv-01383-LJO-GBC. The Court ordered each

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Plaintiff to file amended complaints in the separated cases.

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On October 20, 2008, objections to the Court’s Severance Order were filed. (ECF

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No. 16.) On November 7, 2008, the Court issued an Order addressing the objections and

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affirming the Severance Order. (ECF No. 18.) Then, on September 2, 2009, the Court

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consolidated the two cases because each involved the same defendants, incident, and

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allegations. (ECF No. 20.) However, due to the parties’ actions, the Court again severed

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the Co-Plaintiffs’ claims on January 31, 2011 with only Plaintiff proceeding in the above

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captioned case. (ECF No. 38.)

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The Court dismissed Plaintiff’s Fourth Amended Complaint with leave to amend for

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failure to state any cognizable claims. (Id.) Plaintiff filed a Fifth Amended Complaint on

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February 25, 2011.

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recommended dismissal of certain claims and Defendants, with prejudice for, again, failing

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to state a cognizable claim. (ECF No. 40.) In response, Plaintiff filed Objections to

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(ECF No. 39.)

On March 11, 2011, the Magistrate Judge

Magistrate Judge Recommendations. (ECF No. 43.)

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The matter was referred to a United State Magistrate Judge pursuant to 28 U.S.C.
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§ 636(b)(1)(B) and Local Rule 302. On March 11, 2011, the Magistrate Judge filed a

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Findings and Recommendations recommending that Plaintiff proceed on the First

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Amendment Retaliation Claim against Defendant Couch, and recommending dismissal of

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all other claims and Defendants found to be not cognizable. (ECF No. 40.) In the

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Objections, Plaintiff states that he “will make this Objection by showing abusive conduct

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by Officers Couch and the to unknown” and objects to all other parties being dismissed.
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(ECF No. 43, p. 3.)
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has

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conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the Findings and Recommendations to be supported by the record and by

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proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, filed March 11, 2011, is ADOPTED;

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2.

Plaintiff is to proceed on his First Amendment Retaliation Claim against

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Defendant Couch;

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3.

All remaining claims are DISMISSED WITH PREJUDICE for failure to state

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a claim under Section 1983; and

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4.

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Defendants California Department of Corrections, Kathleen Allison, Kenneth

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Clark, and two Does are DISMISSED WITH PREJUDICE based upon

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Plaintiff’s failure to state cognizable claims against them.

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IT IS SO ORDERED.

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Dated:
b9ed48

May 13, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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