Larry Smith v. Gonzales et al
Filing
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ORDER ADOPTING 19 Findings and Recommendations, signed by District Judge Dale A. Drozd on 10/4/18. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LARRY SMITH,
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No. 1:17-cv-00436-DAD-GSA (PC)
Plaintiff,
v.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
SGT. J. GONZALES, et al.,
(Doc. No. 19)
Defendants.
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Plaintiff Larry Smith is a state prisoner proceeding pro se and in forma pauperis with this
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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 April 19, 2018, the assigned magistrate judge entered findings and recommendations,
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recommending that this case proceed on the claims found cognizable and that plaintiff’s
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remaining claims be dismissed from this action based on plaintiff’s failure to state a claim. (Doc.
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No. 19.) Those findings and recommendations were served on plaintiff and contained notice that
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any objections thereto were to be filed within fourteen (14) days after service. (Id. at 3.)
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On May 7, 2018, plaintiff filed objections to the findings and recommendations. (Doc.
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No. 20.) In response to plaintiff’s objections, the magistrate judge issued an order requiring
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plaintiff to clarify whether he objected to the findings and recommendations and sought leave to
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file a second amended complaint, or whether he was willing to proceed only on the claims found
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cognizable. (Doc. No. 22.) On June 13, 2018, plaintiff notified the court in writing that he does
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not wish to file a second amended complaint and is willing to proceed only on the claims found
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cognizable by the court at screening, dismissing all remaining claims. (Doc. No. 24.)
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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, the
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court finds the findings and recommendations to be supported by the record and proper analysis.
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Accordingly,
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1. The findings and recommendations issued by the magistrate judge on April 19,
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2018 (Doc. No. 19) are adopted in full;
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2. This case now proceeds only against defendants Sergeant Gonzales, Correctional
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Officer (“C/O”) Johnson, C/O Castro, C/O Miner, C/O Florez, and C/O Potzernitz
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for use of excessive force in violation of the Eighth Amendment; against
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defendants C/O Fritz and C/O Scaife for failure to protect plaintiff in violation of
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the Eighth Amendment; and against defendant Sergeant Gonzales for retaliation in
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violation of the First Amendment;
3. Defendant C/O Gonzales is dismissed from this action based on plaintiff’s failure
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to state any claims against him;
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4. Plaintiff’s claims relating to an alleged improper strip search, due process
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violations, false reports, deprivation of personal property, detention in
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administrative segregation, loss of good-time credits, loss of privileges, improper
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appeals process, and cover-up are dismissed, based on plaintiff’s failure to state a
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claim upon which relief may be granted; and
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5. This case is referred back to the magistrate judge for further proceedings,
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including initiation of service of process.
IT IS SO ORDERED.
Dated:
October 4, 2018
UNITED STATES DISTRICT JUDGE
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