Brady K. Armstrong v. Yates et al

Filing 22

ORDER Adopting Findings and Recommendations 13 and Dismissing Certain Claims and Defendants, signed by District Judge Lawrence J. O'Neill on 11/1/11. (Verduzco, M)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

BRADY K. ARMSTRONG,

10
11
12

CASE NO. 1:10-CV-02380-LJO-DLB PC

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS

v.
JAMES A. YATES, et al.,

13

(DOC. 13)

Defendants.

14
15

/

16
17

Plaintiff Brady K. Armstrong (“Plaintiff”) is a California state prisoner proceeding pro se in

18

this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on

19

December 22, 2010. Doc. 1. The matter was referred to a United States Magistrate Judge pursuant

20

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

21

On June 30, 2011, the Magistrate Judge filed a Findings and Recommendations which was

22

served on Plaintiff and which contained notice to Plaintiff that any objection to the Findings and

23

Recommendations was to be filed within twenty-one days. Doc. 13. After receiving several

24

extensions of time, Plaintiff filed an Objection to the Findings and Recommendations on October

25

17, 2011. Doc. 21.

26

In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de

27

novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and

28

Recommendations to be supported by the record and by proper analysis. The Court provides the
1

1

following additional analysis.

2

Plaintiff states a cognizable claim against Defendant S. Dishman for retaliation in violation

3

of the First Amendment and deliberate indifference in violation of the Eighth Amendment, and

4

against Defendant J. Aguerralde for retaliation in violation of the First Amendment. The Magistrate

5

Judge found, and the undersigned agrees, that Plaintiff’s claims against Defendant S. Dishman and

6

J. Aguerralde arise from a different transaction or occurrence and belong in different cases. On

7

September 1, 2011, Plaintiff notified the Court of his intent to proceed against Defendant S. Dishman

8

in this action. Doc. 19. Plaintiff’s claim against Defendant J. Aguerralde will be dismissed without

9

prejudice to refiling in a new action.

10

Accordingly, IT IS HEREBY ORDERED that:

11

1.

The Findings and Recommendations, filed June 30, 2011, is adopted in full;

12

2.

Plaintiff’s claims which occurred in 2006 are DISMISSED pursuant to res judicata

13

and Defendants Yates, Trimble, Davis, Ferro, Hansen, Griffin, Gastelum, Stone,

14

Galaviz, Petrick, Mattingly, Shannon, Reeves, Ladd, and Grannis are dismissed from

15

this action;

16

3.

Plaintiff’s claims against Defendants Martinez, Davi, Ybarra, Spears, Montano,

17

Perry, Meyst, Ramos, and Kanu are DISMISSED with prejudice for failure to state

18

a claim against them;

19

4.

20

Plaintiff’s claim against Defendant J. Aguerralde for retaliation in violation of the
First Amendment is dismissed without prejudice; and

21

5.

This action proceed on Plaintiff’s claim against Defendant S. Dishman for retaliation

22

in violation of the First Amendment and deliberate indifference in violation of the

23

Eighth Amendment.

24

IT IS SO ORDERED.

25

Dated:
b9ed48

November 1, 2011

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

26
27
28
2