Cannon v. Daves et al

Filing 14

ORDER ADOPTING 9 FINDINGS AND RECOMMENDATIONS that Plaintiff be Permitted to Proceed on Cognizable Claims and that Non-Cognizable Claims be Dismissed with Leave to Amend signed by Chief Judge Lawrence J. O'Neill on 05/01/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELVIN CANNON,
Plaintiff,

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v.

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KONG, et al.,

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Defendants.

Case No. 1:18-cv-00666-LJO-JDP
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS THAT PLAINTIFF
BE PERMITTED TO PROCEED ON
COGNIZABLE CLAIMS AND THAT NONCOGNIZABLE CLAIMS BE DISMISSED
WITH LEAVE TO AMEND
ECF No. 9

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Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On March 29, 2019, the magistrate judge screened plaintiff’s complaint. ECF No. 9. The

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magistrate judge issued findings and recommendations that (1) plaintiff has stated a retaliation

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claim against defendant Gallahger and conditions-of-confinement claims against defendants

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Kong, Gonzalves, Torres, Vang, Rocha, Perez, Curtis, Correctional Officer Gamboa, Flores,

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Brandon, Hernandez, Podsakoff, Wilson, Gallahger, and Shelby; (2) plaintiff’s remaining claims

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should be dismissed without prejudice; and (3) plaintiff should be granted leave to amend the

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complaint.1 Id. Plaintiff did not file objections to the findings and recommendations, and the

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time to do so has expired.

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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, IT IS ORDERED that:

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1. The findings and recommendations issued by the magistrate judge on March 29, 2019,

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ECF No. 9, are ADOPTED IN FULL.

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2. Plaintiff states a retaliation claim against defendant Gallahger.

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3. Plaintiff states conditions-of-confinement claims against defendants Kong, Gonzalves,

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Torres, Vang, Rocha, Perez, Curtis, Correctional Officer Gamboa, Flores, Brandon,

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Hernandez, Podsakoff, Wilson, Gallahger, and Shelby.
4. Plaintiff’s remaining claims are dismissed without prejudice, and plaintiff is granted

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leave to amend the complaint.

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5. If plaintiff files a second amended complaint, defendants Kong, Gonzalves, Torres,

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Vang, Rocha, Perez, Curtis, Correctional Officer Gamboa, Flores, Brandon,

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Hernandez, Podsakoff, Wilson, Gallahger, and Shelby are not required to respond until

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the court screens the amended complaint.

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IT IS SO ORDERED.
Dated:

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May 1, 2019

/s/ Lawrence J. O’Neill _____
UNITED STATES CHIEF DISTRICT JUDGE

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Plaintiff filed a first amended complaint on April 8, 2019. ECF No. 10. The magistrate judge
screened plaintiff’s first amended complaint and concluded that it failed to state a claim. ECF
No. 11. Accordingly, plaintiff withdrew his first amended complaint, ECF No. 12, and the action
proceeds on plaintiff’s original complaint, ECF No. 13.
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