Fosselman v. Cate et al

Filing 23

ORDER ADOPTING 18 FINDINGS AND RECOMMENDATIONS, Dismissing Certain Claims and Defendants for Failure to State a Cognizable Claim, and Referring Matter Back to Magistrate Judge for Further Proceedings signed by District Judge Anthony W. Ishii on 1/16/2015. Defendants J. Heberle, T. Billings and Matthew Cate terminated. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LORENZO FOSSELMAN, JR.

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Plaintiff,

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v.

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MATTHEW CATE, et al.,

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Defendants.

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Case No.: 1:12-cv-01302-AWI-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATION, DISMISSING CERTAIN
CLAIMS AND DEFENDANTS FOR FAILURE TO
STATE A COGNIZABLE CLAIM, AND
REFERRING MATTER BACK TO MAGISTRATE
JUDGE FOR FURTHER PROCEEDINGS
[ECF No. 18]

Plaintiff Lorenzo Fosselman, Jr. is appearing pro se in this civil rights action pursuant to 42

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U.S.C. § 1983.

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On October 31, 2013, the Court screened Plaintiff’s complaint and granted him the option of

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either filing an amended complaint or notifying the Court of his intent to proceed only on the claims

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found to be cognizable. (ECF No. 14.)
On November 18, 2013, Plaintiff filed an amended complaint. On January 27, 2014, the

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Magistrate Judge issued a Findings and Recommendation that the action proceed only on Plaintiff’s

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Eighth Amendment claim against Defendant Johnson and on Plaintiff’s First Amendment retaliation

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claim against Defendant Dimmer and all other claims be DISMISSED, without leave to amend. (ECF

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NO. 18.) The Findings and Recommendations were served on Plaintiff and contained notice that

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objections were to be filed within thirty days. Plaintiff filed objections on February 24, 2014.

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

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novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s objections,

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the Court finds the Findings and Recommendation to be supported by the record and by proper

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analysis. Plaintiff appears to be arguing that Defendants Cate, Harrington, and Billings have violated

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his Eighth Amendment rights by implementing a general policy of double celling, even among high

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security level prisoners. However, “Double-celling as such is not constitutionally impermissible.”

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Ford v. Ramirez-Palmer, 301 F.3d 1043, 1051 (9th Cir. 2002) (dealing with housing of level four,

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highest security level, prisoner). Plaintiff has not alleged that these three Defendants knew the

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specific concerns Plaintiff expressed about being housed with prisoner Davis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendation, filed on January 27, 2014, is adopted in full; and

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2.

This action shall proceed solely on Plaintiff’s Eighth Amendment claim against

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Defendant Johnson and on Plaintiff’s First Amendment retaliation claim against Defendant

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Dimmer;

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3.

All other claims and defendants are DISMISSED from the action with prejudice; and

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4.

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

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IT IS SO ORDERED.

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Dated: January 16, 2015

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SENIOR DISTRICT JUDGE

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