Smith v. Hernandez et al

Filing 66

ORDER ADOPTING 43 FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS, signed by Chief Judge Lawrence J. O'Neill on 07/9/2018. (Martin-Gill, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

DELBERT J. SMITH,
Plaintiff,

11
12
13
14

v.
C. HERNANDEZ, et al.,
Defendants.

15

)
)
)
)
)
)
)
)
)
)

Case No.: 1:16-cv-01267-LJO-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS
(Doc. No. 43)

16

Plaintiff Delbert J. Smith is appearing pro se and in forma pauperis in this civil rights action

17

pursuant to 42 U.S.C. § 1983. This matter was referred to a United States magistrate judge pursuant to

18

28 U.S.C. § 636(1)(B) and Local Rule 302.

19

On November 9, 2017, the assigned magistrate judge screened Plaintiff’s first amended

20

complaint pursuant to 28 U.S.C. § 1915A(a), and found that it states a claim against Officers C.

21

Hernandez, Flores-Alvarenga, Zuniga, and Cramer for excessive force in violation of the Eighth

22

Amendment and retaliation in violation of the First Amendment, and against Officer C. Hernandez for

23

deliberate indifference to plaintiff’s serious medical needs in violation of the Eighth Amendment.

24

(Doc. No. 43.) The magistrate judge further found that all other claims against those officers should

25

be dismissed for the failure to state a cognizable claim, and that Plaintiff’s claims against Officer

26

Montanez and Sergeant Carranza should be dismissed without prejudice as improperly joined in this

27

action pursuant to Rule 20 of the Federal Rules of Civil Procedure. (Id.) Finally, the magistrate judge

28

found that Plaintiff’s claim for injunctive relief should be dismissed as moot. (Id.)
1

Plaintiff was given thirty days to file his objections to the findings and recommendations. (Id.)

1
2

Plaintiff did not file any objections, and the time in which to do so has now passed.

3

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the

4

undersigned has conducted a de novo review of Plaintiff’s case. The undersigned concludes that the

5

findings and recommendations are supported by the record and by proper analysis.
Accordingly,

6
7

1. The findings and recommendations issued on November 9, 2017 (Doc. No. 43) are adopted in
full;

8
9

2. This action shall proceed against Officers C. Hernandez, Flores-Alvarenga, Zuniga, and

10

Cramer for excessive force in violation of the Eighth Amendment and retaliation in violation of

11

the First Amendment, and against Officer C. Hernandez for deliberate indifference to

12

Plaintiff’s serious medical needs in violation of the Eighth Amendment;

13

3.

dismissed without leave to amend for failure to state a claim;

14
15

All other claims against Officers C. Hernandez, Flores-Alvarenga, Zuniga, and Cramer are

4.

Plaintiff’s claims against Officer Montanez and Sergeant Carranza are dismissed without

16

prejudice as improperly joined in this action pursuant to Rule 20 of the Federal Rules of Civil

17

Procedure; and

18

5. Plaintiff’s claim for injunctive relief is dismissed as moot.

19
20
21
22

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

July 9, 2018

UNITED STATES CHIEF DISTRICT JUDGE

23
24
25
26
27
28
2