Estrada v. Tassey et al

Filing 42

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants 27 , signed by District Judge Lawrence J. O'Neill on 11/19/13: Defendants Savermilch, Musselman, Garcia, Rodriguez, Vogel, Gonzalez, Beard, Cate, and Castro are DISMISSED. (Hellings, J)

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EASTERN DISTRICT OF CALIFORNIA

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DAVID ESTRADA,

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Plaintiff,
vs.
TASSEY, et al.,
Defendants.

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1:13cv00919 LJO DLB PC
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS AND
DISMISSING CERTAIN CLAIMS AND
DEFENDANTS
(Document 27)

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Plaintiff David Estrada (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this this civil action. Plaintiff filed his First Amended Complaint on August 8, 2013.

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On September 3, 2013, the Court issued a second screening order requiring Plaintiff to either file

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an amended complaint or notify the Court of his willingness to proceed on the cognizable claims.
On September 11, 2013, Plaintiff notified the Court that he would proceed on the cognizable
claims. The matters were referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302.
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On September 20, 2013, pursuant to Plaintiff’s notification, the Magistrate Judge issued
Findings and Recommendations that the action proceed on (1) retaliation in violation of the First
Amendment against Defendants Gipson and Espinosa; and (2) violation of the Eighth
Amendment against Defendants Gipson, Espinosa, Lambert and Cavazos. The Court further
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recommended that the remaining claims, as well as Defendants Savermilch, Musselman, Garcia,
Rodriguez, Vogel, Gonzalez, Beard, Cate and Castro, be dismissed. The Findings and
Recommendations were served on Plaintiff and contained notice that any objections were to be
filed within thirty days.

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On Plaintiff filed objections on October 15, 2013. As objections were inconsistent with
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Plaintiff’s prior notification to move forward with the cognizable claims, the Court ordered
Plaintiff to clarify his intent on October 18, 2013.
On November 18, 2013, Plaintiff informed the Court that he did not wish to amend his

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complaint and wanted to move forward with this action.

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

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

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Findings and Recommendations are supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The Findings and Recommendations, filed September 20, 2013, are ADOPTED in
full;

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2.

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This actions SHALL PROCEED on the following cognizable claims: (1)
retaliation in violation of the First Amendment against Defendants Gipson and

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Espinosa; and (2) violation of the Eighth Amendment against Defendants Gipson,
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Espinosa, Lambert and Cavazos; and1

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3.

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All other claims, as well as Defendants Savermilch, Musselman, Garcia,

Rodriguez, Vogel, Gonzalez, Beard, Cate and Castro, are DISMISSED.
IT IS SO ORDERED.

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Dated:

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November 19, 2013

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

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Plaintiff returned service documents and on October 11, 2013, the United States Marshal was ordered to serve
these Defendants.
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