Brady K. Armstrong v. Yates et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BRADY K. ARMSTRONG,
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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.,
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(DOC. 13)
Defendants.
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Plaintiff Brady K. Armstrong (“Plaintiff”) is a California state prisoner proceeding pro se in
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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on
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December 22, 2010. Doc. 1. The matter was referred to a United States Magistrate Judge pursuant
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to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On June 30, 2011, the Magistrate Judge filed a Findings and Recommendations which was
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served on Plaintiff and which contained notice to Plaintiff that any objection to the Findings and
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Recommendations was to be filed within twenty-one days. Doc. 13. After receiving several
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extensions of time, Plaintiff filed an Objection to the Findings and Recommendations on October
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17, 2011. Doc. 21.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de
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novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and
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Recommendations to be supported by the record and by proper analysis. The Court provides the
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following additional analysis.
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Plaintiff states a cognizable claim against Defendant S. Dishman for retaliation in violation
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of the First Amendment and deliberate indifference in violation of the Eighth Amendment, and
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against Defendant J. Aguerralde for retaliation in violation of the First Amendment. The Magistrate
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Judge found, and the undersigned agrees, that Plaintiff’s claims against Defendant S. Dishman and
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J. Aguerralde arise from a different transaction or occurrence and belong in different cases. On
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September 1, 2011, Plaintiff notified the Court of his intent to proceed against Defendant S. Dishman
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in this action. Doc. 19. Plaintiff’s claim against Defendant J. Aguerralde will be dismissed without
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prejudice to refiling in a new action.
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Accordingly, IT IS HEREBY ORDERED that:
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The Findings and Recommendations, filed June 30, 2011, is adopted in full;
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2.
Plaintiff’s claims which occurred in 2006 are DISMISSED pursuant to res judicata
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and Defendants Yates, Trimble, Davis, Ferro, Hansen, Griffin, Gastelum, Stone,
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Galaviz, Petrick, Mattingly, Shannon, Reeves, Ladd, and Grannis are dismissed from
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this action;
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3.
Plaintiff’s claims against Defendants Martinez, Davi, Ybarra, Spears, Montano,
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Perry, Meyst, Ramos, and Kanu are DISMISSED with prejudice for failure to state
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a claim against them;
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4.
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Plaintiff’s claim against Defendant J. Aguerralde for retaliation in violation of the
First Amendment is dismissed without prejudice; and
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This action proceed on Plaintiff’s claim against Defendant S. Dishman for retaliation
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in violation of the First Amendment and deliberate indifference in violation of the
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Eighth Amendment.
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IT IS SO ORDERED.
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Dated:
b9ed48
November 1, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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