Sanders v. Matthew et al

Filing 25

ORDER ADOPTING 24 FINDINGS AND RECOMMENDATIONS Recommending that this Action Proceed only Against Defendants Matthew and Strugeon on Plaintiff's Unlawful Arrest and Excessive Force Claims and that all Other Claims and Defendants be Dismissed signed by Chief Judge Lawrence J. O'Neill on 01/12/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP SANDERS,

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Plaintiff,
v.

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MATTHEW et al.,
Defendants.

1:15-cv-00395-LJO-EPG
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS RECOMMENDING
THAT THIS ACTION PROCEED ONLY
AGAINST DEFENDANTS MATTHEW AND
STRUGEON ON PLAINTIFF’S UNLAWFUL
ARREST AND EXCESSIVE FORCE CLAIMS
AND THAT ALL OTHER CLAIMS AND
DEFENDANTS BE DISMISSED
(ECF Nos. 23, 24)

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Plaintiff, Phillips Sanders (“Plaintiff”) appearing pro se and in forma pauperis, filed a
complaint alleging civil rights violations pursuant to 42 U.S.C. § 1983 against numerous
defendants. (Doc. 1). The Court screened the pleading and dismissed the complaint with leave to
amend. (Doc. 8). On February 22, 2016, Plaintiff filed a Motion for Reconsideration, as well as a
Notice of Appeal with the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”).
(Docs. 11 and 12). While the appeal was pending, Plaintiff filed a First Amended Complaint
(“1AC”) on March 4, 2016. (Doc. 17). Plaintiff’s Motion for Reconsideration was denied on
March 9, 2016. (Doc. 18). The Ninth Circuit dismissed Plaintiff’s appeal on April 7, 2016, and
issued the mandate on May 2, 2016. (Docs. 19 and 20).
The Court screened the 1AC on June 23, 2016. (Doc. 21.) The Court found that the 1AC
failed to state cognizable claims and that several of his claims appear to be otherwise barred. (Id.
at 5.) Plaintiff was provided with the applicable legal standards so that he could determine if he
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would like to pursue his case. (Id.) Plaintiff was also advised that any amended complaint must

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include a request for relief as the 1AC did not identify any relief he is seeking. (Id.) Finally,

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Plaintiff was warned that he would only be provided one more opportunity to amend his

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complaint. (Id. at 2.)

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On August 1, 2016, Plaintiff filed a Second Amended Complaint (“2AC”). (Doc. 23.) The

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Magistrate Judge screened the 2AC pursuant to its authority in 28 U.S.C. § 1915(e)(2) on

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December 12, 2016 and filed Findings and Recommendations recommending that the 2AC

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proceed under 42 U.S.C. § 1983 only on Plaintiff’s unlawful arrest (claims 4-5) and excessive

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force claims (claims 2 and 6) against defendants Matthew and Sturgeon. (ECF No. 24 at 9.) The

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Magistrate Judge further recommended that all remaining claims and defendants be dismissed.

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(Id.) This was served on Plaintiff that same day and contained notice that any objections were to

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be filed within twenty days. (Id.) Plaintiff did not file objections to the Findings and

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Recommendations within twenty days.

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

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

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Findings and 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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adopted in full;

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The Findings and Recommendations, filed December 12, 2016 (Doc. 24), are

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This action proceed under 42 U.S.C. § 1983 only on Plaintiff’s unlawful arrest
(claims 4-5) and excessive force claims (claims 2 and 6) against defendants

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Matthew and Sturgeon; and

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3.

All remaining claims and defendants are dismissed from this action as follows:

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a. Claim 1 for conspiracy to commit malicious prosecution under 42 U.S.C. §
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1983 against Matthew and Sturgeon is DISMISSED with prejudice;
b. Claim 3 for malicious prosecution under 42 U.S.C. § 1983 against Matthew
and Sturgeon is DISMISSED with prejudice;

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c.

Claims 7 and 11 for ineffective assistance of counsel under 42 U.S.C. § 1983

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against Sabrina Ashjian and Gary Shinaver are DISMISSED with prejudice;

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d. Claims 8 and 10 for deprivation of due process under 42 U.S.C. § 1983 against
Ashjian and Shinaver are DISMISSED with prejudice; and

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e. Claim 9 for legal malpractice under state law against Ashjian and Shinaver is

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DISMISSED without prejudice.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill _____

January 12, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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