Lescallett v. Diaz et al

Filing 18

ORDER ADOPTING 14 FINDINGS AND RECOMMENDATIONS Regarding Dismissal of Certain Claims and Defendants signed by District Judge Lawrence J. O'Neill on 7/21/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARRELL JUNIOR LESCALLETT,

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Plaintiff,

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v.

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R. DIAZ, et al.,

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Defendants.

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Case No.: 1:13-cv-01342-LJO-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DISMISSAL OF CERTAIN CLAIMS AND
DEFENDANTS
(ECF Nos. 11, 12, 13, 14)

Plaintiff Darrell Junior Lescallett (“Plaintiff”) is a state prisoner proceeding pro se in this civil
rights action pursuant to 42 U.S.C. § 1983.

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On June 2, 2015, the Magistrate Judge screened Plaintiff’s second amended complaint pursuant

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to 28 U.S.C. § 1915A, and found that it stated cognizable retaliation claim against Defendants Gipson,

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Bloomfield and Doe Defendants regarding his identification as a 2-5 gang affiliate and placement on a

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modified program, but failed to state any other cognizable claims. The Magistrate Judge therefore

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provided Plaintiff with an opportunity to file an amended complaint or notify the Court whether he

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was agreeable to proceed only on the cognizable claims. (ECF No. 12.) On June 22, 2015, Plaintiff

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notified the Court of his intention to proceed only on the cognizable claims. (ECF No. 13.)

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On June 29, 2015, the Magistrate Judge issued Findings and Recommendations that (1) this

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action proceed on Plaintiff’s second amended complaint, filed on November 24, 2014, for retaliation

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in violation of the First Amendment against Defendants Gipson, Broomfield and Doe Defendants

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arising out of events on June 26, 2012, which resulted in Plaintiff’s placement on a modified program;

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(2) Plaintiff’s remaining claims be dismissed from this action, including Plaintiff’s additional

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retaliation, Due Process and Eighth Amendment claims; and (3) Defendants Weaver, Juarez, Prudhel

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and McMurrey be dismissed from this action. The Findings and Recommendations were served on

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Plaintiff and contained notice that any objections were to be filed within fourteen (14) days after

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service. (ECF No. 14.) More than fourteen days have passed and no objections have been filed.

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

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations issued on June 29, 2015, are adopted in full;

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2.

This action shall proceed on Plaintiff’s second amended complaint, filed on November

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24, 2014, for retaliation in violation of the First Amendment against Defendants Gipson, Broomfield

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and Doe Defendants arising out of events on June 26, 2012, which resulted in Plaintiff’s placement on

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a modified program;

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3.

Plaintiff’s remaining claims are dismissed from this action, including Plaintiff’s

additional retaliation, Due Process and Eighth Amendment claims; and
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Defendants Weaver, Juarez, Prudhel, and McMurrey are dismissed from this action.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 21, 2015

UNITED STATES DISTRICT JUDGE

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