McCurdy v. Kernan et al

Filing 18

ORDER Adopting 17 Findings and Recommendations, Dismissing Certain Claims and Defendants, and Referring Matter back to the Magistrate Judge for Initiation of Service of Process, signed by Chief Judge Lawrence J. O'Neill on 4/23/18. Buatista added. S. Kernan (Secretary of CDCR), Chris Lesniak (Captain at CSP-Corcoran), Dave Davey (Warden at CSP-Corcoran) and J. Espinoza (Lieutenant at CSP-Corcoran) terminated. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES C. McCURDY,

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Plaintiff,

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v.
S. KERNAN, et al.,

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Defendants.

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Case No.: 1:17-cv-01356-LJO-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DISMISSING
CERTAIN CLAIMS AND DEFENDANTS, AND
REFERRING MATTER BACK TO THE
MAGISTRATE JUDGE FOR INITIATION OF
SERVICE OF PROCESS
[ECF Nos. 16, 17]

Plaintiff James C. McCurdy is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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On October 30, 2017, the Magistrate Judge filed Findings and Recommendations,

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recommending that this action proceed against Defendant Bautista for excessive force in violation of

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the Eighth Amendment and battery under California law. (ECF No. 17.) It was recommended that all

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other claims and defendants be dismissed for failure to state a cognizable claim for relief. (Id.) The

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Findings and Recommendations were served on Plaintiff and contained notice that objections were to

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be filed within thirty days. (Id.) To date, no objections have been filed, and the time for doing so has

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passed.

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

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novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and

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Recommendations to be supported by the record and by proper analysis.
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Accordingly, it is HEREBY ORDERED that:

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The March 21, 2018 findings and recommendations (ECF No. 17) are adopted in full;

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2.

This action shall proceed on against Defendant Bautista for excessive force in violation

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of the Eighth Amendment and battery under California law;
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Defendants Kernan, Dave Davey, Chris Lesniak, J. Espinoza, D. Case, J. Hubbard, J.

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Ramirez, J. Cortez, J. Ledesma, G. Viduya, M. Mendoza, Michael Penn, D. Grimsley, M. Alonso, J.

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Clingerman, N. Balaba, F. Torres, and M. Itriago are dismissed from this action for Plaintiff’s failure

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to state a cognizable claim against them;
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All other causes of action are dismissed for Plaintiff’s failure to state a cognizable

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5.

Plaintiff’s request for declaratory relief is dismissed; and

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6.

The matter is referred back to the assigned Magistrate Judge for initiation of service of

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claim;

process.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

April 23, 2018

UNITED STATES CHIEF DISTRICT JUDGE

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