Haney v. Epstein et al

Filing 18

ORDER Dismissing Certain Claims and Defendants, and Requiring Defendants Epstein and Gonzales to File a Response to Plaintiff's 8 Amended Complaint Within Thirty Days, signed by District Judge Lawrence J. O'Neill on 9/15/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRUCE PATRICK HANEY,

CASE NO. 1:10-cv-01506-LJO-SKO PC

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Plaintiff,

ORDER DISMISSING CERTAIN CLAIMS
AND DEFENDANTS, AND REQUIRING
DEFENDANTS EPSTEIN AND GONZALES
TO FILE A RESPONSE TO PLAINTIFF’S
AMENDED COMPLAINT WITHIN THIRTY
DAYS

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v.
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L. EPSTEIN, et al.,
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Defendants.
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(Docs. 8, 15, and 17)
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Plaintiff Bruce Patrick Haney, a state prisoner proceeding pro se, filed this civil rights action

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in Kings County Superior Court on June 23, 2010, and Defendants Epstein, Rodriguez, Shelton,

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Gonzales, Jennings, Comaites, and Vella removed the action to this court on August 19, 2010.1 28

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U.S.C. § 1441(b).

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On August 25, 2011, the Court screened Plaintiff’s amended complaint and found that (1)

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it stated cognizable retaliation claims against Defendants Epstein and Gonzales, (2) Plaintiff’s claim

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against Defendant Wortman was improperly joined, and (3) Plaintiff’s remaining claims failed to

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state a claim upon which relief may be granted. 28 U.S.C. § 1915A. The Court ordered Plaintiff to

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either file a second amended complaint or notify the Court of his willingness to proceed only on the

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claims found to be cognizable in the screening order. On September 12, 2011, Plaintiff filed a notice

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stating he does not intend to amend and he is willing to proceed only on his cognizable retaliation

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claims.

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///

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Defendants Allen and Foston did not join in the notice of removal and there is no evidence that they were
served with the complaint during the pendency of the action in Kings County Superior Court. Defendant W ortman
was added as a party in the amended complaint, which was filed after removal occurred, and post-removal service
was not authorized by the Court.

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Accordingly, based on Plaintiff’s notice, it is HEREBY ORDERED that:

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This action shall proceed on Plaintiff’s amended complaint, filed on October 6, 2010,

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against Defendants Epstein and Gonzales on Plaintiff’s cognizable First Amendment

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retaliation claims as identified in the screening order;2

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2.

Plaintiff’s retaliation claim against Defendant Wortman is dismissed, without

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prejudice, as improperly joined and Defendant Wortman is dismissed from this

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action;

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3.

All other claims are dismissed for failure to state a claim;

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4.

Defendants Sheldon, Rodriguez, Comaites, Vella, Allen, Foston, and Jennings are

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dismissed from this action based on Plaintiff’s failure to state any claims against

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them; and

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5.

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Defendants Epstein and Gonzales shall file a response to Plaintiff’s amended
complaint within thirty (30) days from the date of service of this order.

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IT IS SO ORDERED.

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Dated:
66h44d

September 15, 2011

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

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Plaintiff’s retaliation claim against Defendant Epstein arises from the alleged confiscation and destruction
of his personal property as punishment for filing lawsuits against officers, and Plaintiff’s retaliation claim against
Defendant Gonzales arises from the alleged denial of Plaintiff’s inmate appeal seeking, in part, reimbursement of the
cost of the personal property that was wrongfully confiscated.

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