Burgess v. Raya, et al.

Filing 49

ORDER Adopting Findings and Recommendation 47 to Grant Defendants' Motion to Dismiss 35 Plaintiff's State Court Claims and Requested Declaratory Relief, signed by District Judge Lawrence J. O'Neill on 5/15/14. (Verduzco, M)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

Case No. 1:11-cv-00921-LJO-JLT (PC)
10

DWAYNE L. BURGESS,

11
12
13

Plaintiff,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATION TO GRANT DEFENDANTS
MOTION TO DISMISS PLAINTIFF'S STATE
COURT CLAIMS AND REQUESTED
DECLARATORY RELIEF

RAYA, et al.,
(Doc. 35, 47)

14

Defendants.

15
16
17

Plaintiff, Dwayne L. Burgess, is a state prisoner proceeding pro se in this civil rights

18

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

19

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

20

Plaintiff is proceeding on his claims against Defendants Raya, Garcia, Polanco, and

21

Fernandez for battery under California law and excessive force in violation of the Eight

22

Amendment and against Defendants Raya and Polanco under the additional claims of conspiracy

23

and retaliation in violation of the First Amendment as stated in the Third Amended Complaint.

24

(Docs. 27, 29, 32.)

25

On April 15, 2104, a findings and recommendation issued to grant Defendants' motion

26

(Doc. 35) to dismiss Plaintiff's claims under California law based on his failure to comply with

27

the California Tort Claims Act ("CTCA") and to dismiss Plaintiff's request for declaratory relief.

28
1

1

(Doc. 47.) The Findings and Recommendation was served on Plaintiff and contained notice that

2

any objections to the Findings and Recommendations were to be filed within thirty days. No

3

objections have been filed.

4

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

5

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

6

Findings and Recommendation to be supported by the record and by proper analysis.

7

Accordingly, IT IS HEREBY ORDERED that:

8

1.

9
10

the Findings and Recommendation, filed April 2, 2014 (Doc. 47),
is adopted in full;

2.

11

Plaintiff's battery claim under California law against Defendants Raya, Fernandez,
Polanco, and Garcia is DISMISSED with prejudice;

12

3.

Plaintiff's request for declaratory relief is DISMISSED; and

13

4.

the matter is referred back to the Magistrate Judge for further proceedings.

14
15
16

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

May 15, 2014

UNITED STATES DISTRICT JUDGE
17
18
19
20
21
22
23
24
25
26
27
28
2