Sutherland v. Yates et al

Filing 20

ORDER signed by District Judge Lawrence J. O'Neill on 6/16/2011 adopting 17 FINDINGS AND RECOMMENDATIONS; ORDER FOR THIS ACTION TO PROCEED ON THE FIRST AMENDED COMPLAINT AGAINST DEFENDANTS FERNANDO AND JERICOFF FOR USE OF EXCESSIVE FORCE AND A GAINST DEFENDANT YATES FOR FAILURE TO PROTECT PLAINTIFF, AND ON PLAINTIFF'S RELATED STATE TORT CLAIMS, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM and ORDER REFERRING CASE back to Magistrate Judge for further proceedings. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM SUTHERLAND,

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Plaintiff,
vs.
A. FERNANDO, et al.,

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ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS
(Doc. 17.)
ORDER FOR THIS ACTION TO PROCEED ON
THE FIRST AMENDED COMPLAINT AGAINST
DEFENDANTS FERNANDO AND JERICOFF FOR
USE OF EXCESSIVE FORCE AND AGAINST
DEFENDANT YATES FOR FAILURE TO
PROTECT PLAINTIFF, AND ON PLAINTIFF'S
RELATED STATE TORT CLAIMS, AND
DISMISSING ALL OTHER CLAIMS AND
DEFENDANTS FOR FAILURE TO STATE A
CLAIM

Defendants.
ORDER REFERRING CASE BACK TO
MAGISTRATE JUDGE FOR FURTHER
PROCEEDINGS

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1:09-cv-02152-LJO-GSA-PC

_____________________________/
William Sutherland (“plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.

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On April 28, 2011, findings and recommendations were entered, recommending that

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this action proceed with the First Amended Complaint filed on December 6, 2010, on Plaintiff’s

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Eighth Amendment claims found cognizable by the Court against defendants C/O A. Fernando and

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C/O M. Jericoff for use of excessive force and against defendant Warden James Yates for failure to

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protect Plaintiff; and on Plaintiff’s related state tort claims; and that all remaining claims and

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defendants be dismissed, based on Plaintiff's failure to state a claim. (Doc. 17.) Plaintiff was

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provided an opportunity to file objections to the findings and recommendations within thirty days.

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To date, plaintiff has not filed objections or otherwise responded to the findings and

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recommendations.

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In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304,

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

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the court finds the findings and recommendations to be supported by the record and proper analysis.

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Accordingly, THE COURT HEREBY ORDERS that:

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1.

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The Findings and Recommendations issued by the Magistrate Judge on April
28, 2011, are ADOPTED in full;

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2.

This action now PROCEEDS with the First Amended Complaint filed on

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December 6, 2010, on Plaintiff’s Eighth Amendment claims found

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cognizable by the Court against defendants C/O A. Fernando and C/O M.

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Jericoff for use of excessive force and against defendant Warden James

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Yates for failure to protect Plaintiff; and on Plaintiff’s related state tort

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claims;

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3.

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All remaining claims and defendants are DISMISSED based on Plaintiff's
failure to state a claim upon which relief may be granted under § 1983;

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4.

Plaintiff's claims for conspiracy, due process violations, and violations of the

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Penal Code are DISMISSED from this action based on Plaintiff’s failure to

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state a claim upon which relief may be granted under § 1983;

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5.

Defendant Lieutenant R. Lantz is DISMISSED from this action based on

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Plaintiff's failure to state any claims upon which relief may be granted

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against him under § 1983; and

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This action is REFERRED back to the Magistrate Judge for further
proceedings, including initiation of service.

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IT IS SO ORDERED.

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Dated:
b9ed48

June 16, 2011

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

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