Brookins v. Hernandez et al

Filing 15

ORDER ADOPTING 13 FINDINGS AND RECOMMENDATIONS as modified herein, DISMISSING Certain Defendants and Referring the Matter back to the Magistrate Judge for Initiation of Service of Process, signed by District Judge Anthony W. Ishii on 8/20/18. N. Scaife (Lieutenant), S. Sherman (Warden), M. Voong (Chief Office of Appeals), T. P. Wan (Associate Warden), D. Foston (Appeals Examiner) and C. Livingston (Lieutenant C-Fac) terminated. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARRY LEE BROOKINS,

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Plaintiff,
v.
M. HERNANDEZ, et al.,
Defendants.

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Case No. 1:17-cv-01675-AWI-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AS MODIFIED HEREIN,
DISMISSING CERTAIN DEFENDANTS, AND
REFERRING THE MATTER BACK TO THE
MAGISTRATE JUDGE FOR INITIATION OF
SERVICE OF PROCESS
[ECF Nos. 12, 13, 14]

Plaintiff Barry Lee Brookins 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 June 15, 2018, the Magistrate Judge filed Findings and Recommendations recommending

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that this action proceed on Plaintiff’s cruel and unusual punishment claim against Defendants Officer

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M Hernandez, Lieutenant E. Williams, Captain Williams, Officer L. Sanchez, Officer Galvenson,

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Officer Schleesman, Sergeant Crane, and Sergeant Salvado. (ECF No. 13.) The Findings and

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Recommendations also recommended Defendants Livingston, Scaife, Sherman, Voong, Foston and

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Wan be dismissed from the action for failure to state a cognizable claim for relief. (Id.) The Findings

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and Recommendations were served on Plaintiff and contained notice that objections were to be filed

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within twenty-one (21) days. (Id.) Plaintiff timely filed objections on July 2, 2018. (ECF No. 14.) In

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his objections, Plaintiff contends that Defendant S. Marsh authorized the application of leg restraints

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on February 19, 2017, and he therefore states a cognizable claim against Marsh. The Court has
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reviewed the first amended complaint and agrees that Plaintiff also states a cognizable claim against

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Defendant S. Marsh for cruel and unusual punishment.

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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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1.

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modified herein;

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2.

The June 15, 2018, Findings and Recommendations (ECF No. 13) are adopted as

This action shall proceed against Defendants Officer M Hernandez, Lieutenant E.

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Williams, Captain Williams, Officer L. Sanchez, Officer Galvenson, Officer Schleesman, Sergeant

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Crane, Sergeant Salvado, and S. Marsh for cruel and unusual punishment;

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3.

Defendants Livingston, Scaife, Sherman, Voong, Foston and Wan are dismissed from

the action for failure to state a cognizable claim for relief; and
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The matter is referred back to the assigned Magistrate Judge for initiation of service of

process.

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IT IS SO ORDERED.

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Dated: August 20, 2018

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SENIOR DISTRICT JUDGE

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