Asberry v. Biter

Filing 152

ORDER Adopting 148 FINDINGS AND RECOMMENDATIONS to (1) GRANT Plaintiff's Motion for Leave to Amend Complaint; (2) Allow Plaintiff to Proceed only on Cognizable Claims; and (3) DENY Plaintiff's Motions for Summary Judgment signed by Chief Judge Lawrence J. O'Neill on 9/22/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,
vs.
C. RELEVANTE, R. LOZOVOY, A.
FERRIS, and P. GODFREY,
Defendants.

Case No. 1:16-cv-01741-LJO-JDP (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO
(1) GRANT PLAINTIFF’S MOTION FOR
LEAVE TO AMEND COMPLAINT;
(2) ALLOW PLAINTIFF TO PROCEED
ONLY ON COGNIZABLE CLAIMS; AND
(3) DENY PLAINTIFF’S MOTIONS FOR
SUMMARY JUDGMENT
(ECF No. 148)

Tony Asberry is a state prisoner proceeding pro se and in forma pauperis in this civil

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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 August 31, 2018, the assigned magistrate judge issued findings and

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recommendations that the court grant Plaintiff’s motion for leave to amend the complaint,

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allow Plaintiff to proceed only on cognizable claims, and deny plaintiff’s motions for summary

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judgment. (ECF No. 148.) The magistrate judge allowed the parties fourteen days to object

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(id. at 30), and the parties filed no objection.

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

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

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the Court finds the findings and recommendations to be supported by the record and proper
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analysis.

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Accordingly, THE COURT HEREBY ORDERS that:

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1. The findings and recommendations issued on August 31, 2018 (ECF No. 148), are

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ADOPTED in full;
2. Plaintiff’s case shall proceed only on these cognizable claims:

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a. deliberate-indifference claims under the Eighth Amendment against

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Lozovoy and Relevante;

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b. conditions-of-confinement claims under the Eighth Amendment against

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Ferris and Godfrey; and

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c. retaliation claims under the First Amendment against Ferris and Godfrey

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(ECF No. 148, at 7-8, 14-15);

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3. All other claims are dismissed;

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4. Plaintiff’s motion for summary judgment on his claims against defendant Lozovoy

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(ECF No. 116) is denied;
5. Plaintiff’s motion for summary judgment on his claims against defendant Relevante

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(ECF No. 117) is denied;
6. Plaintiff’s motion for summary judgment on his claims against defendants Ferris

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and Godfrey (ECF No. 125) is denied; and
7. This matter is referred back to the assigned magistrate judge for further proceedings

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consistent with this order.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

September 22, 2018

UNITED STATES CHIEF DISTRICT JUDGE

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