Gilmore v. Augustus, et al.

Filing 131

ORDER ADOPTING 123 FINDINGS AND RECOMMENDATIONS; ORDER Denying Plaintiff's 89 Motion for Substitution, or in the Alternative, for Leave to Serve Process upon Defendant Torres' Legal Representative; ORDER Denying 94 Motion to Strike; ORDER Dismissing Defendant Torres from this Action, with Prejudice; ORDER Dismissing Plaintiff's Medical Claim from this Action signed by District Judge Lawrence J. O'Neill on 07/07/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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C. DWAYNE GILMORE,
Plaintiff,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
(ECF No. 123; also resolves ECF No. 117.)

vs.

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1:12-cv-00925-LJO-GSA-PC

ORDER DENYING PLAINTIFF’S MOTION
FOR SUBSTITUTION, OR IN THE
ALTERNATIVE, FOR LEAVE TO SERVE
PROCESS UPON DEFENDANT TORRES’
LEGAL REPRESENTATIVE
(ECF No. 89.)

D. AUGUSTUS, et al.,
Defendants.

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ORDER DENYING DEFENDANTS’
MOTION TO STRIKE
(ECF No. 94.)

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ORDER DISMISSING DEFENDANT
TORRES FROM THIS ACTION, WITH
PREJUDICE

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ORDER DISMISSING PLAINTIFF’S
MEDICAL CLAIM FROM THIS ACTION

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C. Dwayne Gilmore (APlaintiff@) is a state prisoner proceeding pro se in this civil rights

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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 May 27, 2015, findings and recommendations were entered, recommending that

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Plaintiff’s motion for substitution and Defendants’ motion to strike be denied, and that

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defendant Torres and Plaintiff’s medical claim be dismissed from this action. (ECF No. 123.)

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On June 19, 2015, Plaintiff filed objections to the findings and recommendations. (ECF No.

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127.)
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this

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

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including Plaintiff’s objections, the Court finds the findings and recommendations to be

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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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2015, are ADOPTED IN FULL;
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Plaintiff’s motion for substitution, or in the alternative, for leave to serve process
upon defendant Torres’ legal representative, filed on November 20, 2014, is

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The Findings and Recommendations issued by the Magistrate Judge on May 27,

DENIED;
3.

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Defendants’ motion to strike Plaintiff’s motion for substitution, filed on
December 11, 2014, is DENIED;

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4.

Defendant J. J. Torres is DISMISSED from this action, with prejudice;

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5.

Plaintiff’s Eighth Amendment medical claim is DISMISSED from this action;

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6.

The Clerk is directed to reflect the dismissal of defendant Torres from this
action on the court’s record;

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7.

This case now proceeds only against defendants C/O Lockard, C/O Lopez, and

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C/O J. Hightower, for use of excessive force in violation of the Eighth

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Amendment; and

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8.

This case is referred back to the Magistrate Judge for further proceedings.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 7, 2015

UNITED STATES DISTRICT JUDGE

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