Lamon v. Adams et al

Filing 121

ORDER Directing Action to Proceed on First and Eighth Amendment Claims Against Defendants Baer, Valdez, Buenos, Lee, Ponce, and Purvis; Dismissing other Claims and Defendants; ORDERING Parties to Submit Statements on Further Discovery; and Referring Matter back to Magistrate Judge for Further Proceedings signed by District Judge Lawrence J. O'Neill on 06/13/2011. K. DaViaga, Marcus Junious, Derral Adams and J. Callow terminated from action. Statements due by 7/18/2011. (Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 BARRY LOUIS LAMON, 10 11 12 13 CASE NO. 1:09-cv-00205-LJO-SMS PC Plaintiff, ORDER DIRECTING ACTION TO PROCEED ON FIRST AND EIGHTH AMENDMENT CLAIMS AGAINST DEFENDANTS BAER, VALDEZ, BUENOS, LEE, PONCE, AND PURVIS; DISMISSING OTHER CLAIMS AND DEFENDANTS; ORDERING PARTIES TO SUBMIT STATEMENTS ON FURTHER DISCOVERY; AND REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS v. DERRAL ADAMS, et al., Defendants. 14 15 (Docs. 1, 111, 117, and 118) 16 / 17 Plaintiff, Barry Louis Lamon (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. §1983. Plaintiff filed this action 19 on February 2, 2009. (Doc. 1.) Initially the Complaint was screened and went forward upon 20 Plaintiff’s consent to proceed only on the claims found cognizable at that time (Docs. 7, 8, 9). 21 Subsequently, the United States Supreme Court issued the decision in Ashcroft v. Iqbal, 22 ___ U.S. ___, 129 S.Ct. 1937 (2009), which ushered in stricter pleading standards. See Moss v. 23 U.S. Secret Service, 572 F.3d 962, 968-69 (9th Cir. 2009) (citing Iqbal; Bell Atlantic Corp. v. 24 Twombly, 550 U.S. 544, 555 (2007)). 25 On May 10, 2011, Plaintiff’s Complaint was re-screened and found to only state 26 cognizable claims against Defendants Baer, Valdez, Buenos, Lee, Ponce, and Purvis for use of 27 excessive force, deliberate indifference to a threat to Plaintiff’s safety, and retaliation; and 28 1 1 Plaintiff was ordered to either file an amended complaint or notify the Court of his willingness to 2 proceed only on his cognizable claims. (Doc. 111.) Plaintiff filed objections which were 3 overruled and moved for reconsideration which was denied. (Docs. 116, 117.) On June 8, 2011, 4 Plaintiff notified the Court that he is willing to proceed on the claims found to be cognizable in 5 the re-screening order. (Doc. 118.) 6 7 Accordingly, in light of the re-screening order and Plaintiff’s election to proceed on his cognizable claims, it is HEREBY ORDERED that: 8 1. 9 This action shall proceed on Plaintiff’s complaint, filed February 2, 2009, only on Plaintiff’s claims against Defendants Baer, Valdez, Buenos, Lee, Ponce, and 10 Purvis for Eighth Amendment excessive use of force and deliberate indifference 11 to a threat to Plaintiff’s safety and for retaliation in violation of the First 12 Amendment;1 13 2. All other defendants and claims are dismissed from this action; 14 3. Within thirty (30) days of the date of service of this order, the parties are ordered 15 to file statements indicating what, if any, further discovery is needed on the 16 remaining claims and within fifteen (15) days of the filing of those discovery 17 statements, the parties may file responsive statements addressing discovery sought 18 by the opposing side; and 19 4. This matter is referred back to the Magistrate Judge to address discovery issues. 20 IT IS SO ORDERED. 21 Dated: b9ed48 June 13, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 1 28 The cognizable claims which Plaintiff is electing to proceed on are not new, but rather were merely rescreened. Defendants have previously answered such that a responsive pleading is not required. 2

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