Silva v. Worth et al

Filing 54

ORDER ADOPTING 52 FINDINGS AND RECOMMENDATIONS and STRIKING Plaintiff's First Amended Complaint 43 , 46 , 51 , 52 , 53 , signed by Chief Judge Lawrence J. O'Neill on 4/17/2019. (14-Day Deadline)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY SILVA,

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Plaintiff,

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v.

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WORTH, et al.,

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Case No. 1:16-cv-01131-AWI-SKO (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND STRIKING
PLAINTIFF’S FIRST AMENDED
COMPLAINT
(Docs. 43, 46, 51, 52, 53)

Defendants.

FOURTEEN (14) DAY DEADLINE

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Plaintiff, Anthony Silva, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On March 6, 2019, the Magistrate Judge filed a Findings and Recommendations (“F&R”)

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to strike Plaintiff’s First Amended Complaint and for Plaintiff to proceed on the claims found

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cognizable in the original Complaint. (Doc. 52.) The F&R was served that same day and

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contained provisions for the parties to file objections within twenty-one days with which Plaintiff

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complied. (Docs. 52, 53.)

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The recommendation in the F&R is based on the finding that the only new claims Plaintiff
alleged in the FAC are based on California law and that Plaintiff does not show compliance with
the California Government Claims Act (“CGCA”). (Id.) In fact, in response to an order to show
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cause (Doc. 46), Plaintiff admitted that other inmates had been assisting him with this action and

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that he was unaware of a requirement to comply with the CGCA before pursuing claims under

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California law (Doc. 51). Plaintiff’s objection to the F&Rs does not show compliance with the

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CGCA and is merely a paragraph of various case citations. (Doc. 53.) Because Plaintiff does not

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show compliance with the CGCA he may not pursue claims under California law in this action.

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See Cal. Govt. Code §§ 810 et seq..

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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:
1. The Findings and Recommendations, issued on March 6, 2019 (Doc. 52), is

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adopted in full;

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2. Plaintiff’s First Amended Complaint, filed on September 20, 2018 (Doc. 43), is

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STRICKEN from the record and this action SHALL proceed on the claims found

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cognizable in Plaintiff’s original Complaint (see Docs. 1, 24, 27, 28); and
3. Within 14 days of the date of service of this order, the parties SHALL file

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statements indicating whether a court supervised settlement conference would be

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beneficial.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

April 17, 2019

UNITED STATES CHIEF DISTRICT JUDGE
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