Miller v. Navarro et al

Filing 21

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS Regarding Dismissal of Action for Failure to State a Claim 18 , signed by District Judge Dale A. Drozd on 8/21/2018: This action now proceeds only on plaintiff's claim brought against defendants Florse, Marquez, and Xayoudom for retaliation in violation of the First Amendment; Plaintiff's claims against defendant Navarro for deliberate indifference in violation of the Eighth Amendment and retaliation in violation of the First Amendment are dismissed, without prejudice, as improperly joined; This matter is referred back to the assigned magistrate judge for issuance 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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GERALD LEE MILLER,

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No. 1:17-cv-01309-DAD-SAB

Plaintiff,
v.
CORRECTIONAL OFFICER J.
NAVARRO, et al.,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DISMISSAL OF ACTION FOR FAILURE TO
STATE A CLAIM

Defendants.
(Doc. No. 18)

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Plaintiff Gerald Lee Miller, a state prisoner, is proceeding pro se and in forma pauperis in

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this 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 10, 2018, the assigned magistrate judge issued findings and recommendations

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recommending that this action proceed only on plaintiff’s claim against defendants Florse,

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Marquez, and Xayoudom for retaliation in violation of the First Amendment. (Doc. No. 18 at 19–

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20.) The magistrate judge further recommended that the court dismiss the following: plaintiff’s

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claims brought against officer Navarro for deliberate indifference in violation of the Eighth

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Amendment and retaliation in violation of the First Amendment without prejudice, as improperly

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joined; plaintiff’s claim for declaratory relief; plaintiff’s claim for injunctive relief; and all other

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claims and defendants due to plaintiff’s failure to state a claim upon which relief may be granted.
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(Id.) Plaintiff was given fourteen days to file objections to those findings and recommendations.

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(Id.) Plaintiff filed no objections, 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)(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.

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The findings and recommendations issued April 10, 2018 (Doc. No. 18) are
adopted in full;

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This action now proceeds only on plaintiff’s claim brought against defendants

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Florse, Marquez, and Xayoudom for retaliation in violation of the First

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Amendment;

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3.

Plaintiff’s claims against defendant Navarro for deliberate indifference in violation

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of the Eighth Amendment and retaliation in violation of the First Amendment are

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dismissed, without prejudice, as improperly joined;

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4.

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not cognizable;
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All other claims and defendants are dismissed due to plaintiff’s failure to state a
claim upon which relief may be granted; and

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Plaintiff’s claims for declaratory relief and for injunctive relief are dismissed as

This matter is referred back to the assigned magistrate judge for issuance of
service of process.

IT IS SO ORDERED.
Dated:

August 21, 2018
UNITED STATES DISTRICT JUDGE

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