Harris v. Gipson et al

Filing 18

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, Permitting Action to Proceed on Plaintiff's Excessive Force and Retaliation Claims, and DISMISSING Defendants Gipson and Cate for Failure to State a Claim 13 , 14 , 15 , 17 , signed by District Judge Dale A. Drozd on 12/20/2017: Matter is referred back to the assigned magistrate judge for initiation of service of process. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEVONTE B. HARRIS,

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No. 1:17-cv-00640-DAD-SAB

Plaintiff,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, PERMITTING
ACTION TO PROCEED ON PLAINTIFF’S
EXCESSIVE FORCE AND RETALIATION
CLAIMS, AND DISMISSING DEFENDANTS
GIPSON AND CATE FOR FAILURE TO
STATE A CLAIM

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(Doc. Nos. 13–15, 17)

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v.
CONNIE GIPSON, et al.,
Defendants.

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Plaintiff Devonte B. Harris is a state prisoner proceeding pro se and in forma pauperis in

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

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

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On October 17, 2017, the assigned magistrate judge screened plaintiff’s first amended

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complaint (Doc. No. 13) and directed plaintiff to either file a second amended complaint or notify

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the court of his intent to proceed only on those claims alleged in his first amended complaint

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which were found cognizable. (Doc. No. 14.) On October 27, 2017, plaintiff provided notice of

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his intent to proceed only on the claims set forth in his first amended complaint found to be

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cognizable. (Doc. No. 15.) On October 30, 2017, the magistrate judge therefore issued findings

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and recommendations, recommending that this action proceed against defendants Briones, Torres,
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Silva and Hernandez on plaintiff’s excessive use of force claim and against defendant Nail for

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retaliation in violation of the First Amendment. (Doc. No. 17.) Those findings and

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recommendations also recommended that all other claims and defendants be dismissed for failure

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to state a cognizable claim for relief. (Id.) The parties were provided fourteen days during

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which to file objections to those findings and recommendations. (Id.) To date, neither party has

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done so, and the time for doing so has now passed.

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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 findings

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

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Accordingly,

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1.

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The October 30, 2017 findings and recommendations (Doc. No. 17) are adopted in
full;

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This action shall proceed on plaintiff’s excessive use of force claim against

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defendants Briones, Torres, Silva, and Hernandez, and against defendant Nail for

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retaliation in violation of the First Amendment;

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3.

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dismissed from this action for failure to state a cognizable claim; and
4.

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Defendants Gipson and Cate, as well as plaintiff’s prayer for declaratory relief are

The matter is referred back to the assigned magistrate judge for initiation of
service of process.

IT IS SO ORDERED.
Dated:

December 20, 2017
UNITED STATES DISTRICT JUDGE

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