Lamon v. Adams et al
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BARRY LOUIS LAMON,
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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.
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(Docs. 1, 111, 117, and 118)
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Plaintiff, Barry Louis Lamon (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. §1983. Plaintiff filed this action
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on February 2, 2009. (Doc. 1.) Initially the Complaint was screened and went forward upon
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Plaintiff’s consent to proceed only on the claims found cognizable at that time (Docs. 7, 8, 9).
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Subsequently, the United States Supreme Court issued the decision in Ashcroft v. Iqbal,
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___ U.S. ___, 129 S.Ct. 1937 (2009), which ushered in stricter pleading standards. See Moss v.
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U.S. Secret Service, 572 F.3d 962, 968-69 (9th Cir. 2009) (citing Iqbal; Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555 (2007)).
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On May 10, 2011, Plaintiff’s Complaint was re-screened and found to only state
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cognizable claims against Defendants Baer, Valdez, Buenos, Lee, Ponce, and Purvis for use of
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excessive force, deliberate indifference to a threat to Plaintiff’s safety, and retaliation; and
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Plaintiff was ordered to either file an amended complaint or notify the Court of his willingness to
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proceed only on his cognizable claims. (Doc. 111.) Plaintiff filed objections which were
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overruled and moved for reconsideration which was denied. (Docs. 116, 117.) On June 8, 2011,
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Plaintiff notified the Court that he is willing to proceed on the claims found to be cognizable in
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the re-screening order. (Doc. 118.)
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Accordingly, in light of the re-screening order and Plaintiff’s election to proceed on his
cognizable claims, it is HEREBY ORDERED that:
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1.
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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
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Purvis for Eighth Amendment excessive use of force and deliberate indifference
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to a threat to Plaintiff’s safety and for retaliation in violation of the First
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Amendment;1
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2.
All other defendants and claims are dismissed from this action;
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3.
Within thirty (30) days of the date of service of this order, the parties are ordered
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to file statements indicating what, if any, further discovery is needed on the
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remaining claims and within fifteen (15) days of the filing of those discovery
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statements, the parties may file responsive statements addressing discovery sought
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by the opposing side; and
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4.
This matter is referred back to the Magistrate Judge to address discovery issues.
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IT IS SO ORDERED.
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Dated:
b9ed48
June 13, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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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.
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