Asberry v. Biter

Filing 25

ORDER ADOPTING 17 FINDINGS AND RECOMMENDATIONS for Action to Proceed Only on Cognizable Claims and that all other claims and Defendants be Dismissed, signed by District Judge Dale A. Drozd on 05/05/17. (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TONY ASBERRY,

12
13
14
15
16

No. 1:16-cv-01741-DAD-MJS (PC)

Plaintiff,
v.
WARDEN BITER, et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS FOR ACTION TO
PROCEED ONLY ON COGNIZABLE
CLAIMS AND THAT ALL OTHER CLAIMS
AND DEFENDANTS BE DISMISSED
(Doc. Nos. 1, 17)

17
18

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

19

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

20

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

21

District Court for the Eastern District of California.

22

On January 24, 2017, the assigned magistrate judge screened plaintiff’s complaint and

23

concluded that it stated the following cognizable claims: an Eighth Amendment claim for

24

deliberate indifference to a serious medical need against defendants Lozovoy and Relevante

25

(formerly identified as defendant “Doe 3,” see Doc. No. 14); an Eighth Amendment conditions of

26

confinement claim against defendants Ferris and Godfrey; and a First Amendment retaliation

27

claim against defendants Ferris and Godfrey. (Doc. No. 5.) The magistrate judge concluded that

28

the remaining claims presented in plaintiff’s complaint were not cognizable as pled. (Doc. No.
1

1

5.) Plaintiff was ordered to file an amended complaint or notify the court in writing if he wished

2

to proceed only on the claims found to be cognizable in the court’s screening order. (Id.)

3

Plaintiff responded that he did not wish to amend and instead wishes to proceed only on the

4

claims found by the court to be cognizable. (Doc. No. 7.) Accordingly, on February 28, 2017,

5

the magistrate judge issued findings and recommendations recommending that this action proceed

6

only on the claims found to cognizable in the screening order and that the remaining claims and

7

defendants be dismissed from this action. (Doc. No. 17.) Plaintiff filed no objections to the

8

findings and recommendations and the time for doing so has passed.

9

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

10

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

11

and recommendations to be supported by the record and by proper analysis.

12

Accordingly,

13

1. The court adopts in full the findings and recommendations filed February 28, 2017

14

(Doc. No. 17);

15

2. This action shall proceed only on the following claims: an Eighth Amendment

16

claim for deliberate indifference to a serious medical need against Defendants

17

Lozovoy and Relevante; an Eighth Amendment conditions of confinement claim

18

against defendants Ferris and Godfrey; and a First Amendment retaliation claim

19

against defendants Ferris and Godfrey; and

20

3. All other claims and defendants are dismissed from this action for failure to state a

21
22
23

claim.
IT IS SO ORDERED.
Dated:

May 5, 2017
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
2