(PC) VanFossan v. Alcantar et al

Filing 20

ORDER ADOPTING IN PART 18 Findings and Recommendations and Dismissing Certain Claims and Defendants signed by District Judge Dale A. Drozd on 11/19/2020. Alvarez, Dave Davey, J. Espinoza, M. Gamboa, R. Godwin, T. Lee, M. Mercado, Jaime Perez, A. Rivas, Rodriguez, T. Sanders, Secretary of the Director of CDCR, Tonorio, Vera, M. Voong, Estela Alcantar and Alejo terminated. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN VANFOSSAN,

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No. 1:20-cv-00173-DAD-EPG (PC)

Plaintiff,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN PART

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ESTELA ALCANTAR, et al.,

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Defendants.

(Doc. No. 18)

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Plaintiff Benjamin VanFossan is a prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. This 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 October 1, 2020, the assigned magistrate judge issued findings and recommendations,

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recommending that “[t]his case proceed on Plaintiff’s claims against Defendants John Amaya, R.

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Alkire, Cruz, A. Gonzales, Jr., Richard Huerta, Theresa Lewandowski and M. Robles for

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violating Plaintiff’s right to due process” and that “[a]ll other claims and defendants in Plaintiff’s

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First Amended Complaint be dismissed, with prejudice.” (Doc. No. 18 at 20.)

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The findings and recommendations were served on plaintiff and contained notice that any
objections thereto were to be filed within twenty-one (21) days from the date of service. (Id.)
Plaintiff filed objections on October 23, 2020. Most notably, plaintiff objects to the
dismissal of defendant DeLos Santos because plaintiff “did not change any of the facts stated in
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the Complaint or lessen the degree of the complaint against [him].” (Doc. No. 19 at 3.) In the

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original screening order, the magistrate judge had found defendant’s claim against defendant

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DeLos Santos to be cognizable. (Doc. No. 12 at 2.) It appears that plaintiff’s allegations

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regarding DeLos Santos in his amended complaint are identical to those alleged as to that

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defendant in his original complaint. The court therefore concludes that this was a mere oversight

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in the pending findings and recommendations and that plaintiff’s claim against DeLos Santos

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should be allowed to proceed.

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

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de novo review of the 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 except with respect to

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defendant Arnel DeLos Santos. This case should also proceed on plaintiff’s claims against

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defendant DeLos Santos for the alleged violation of plaintiff’s right to due process.

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Accordingly:

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1.

adopted in part and rejected in part;

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The findings and recommendations issued on October 1, 2020 (Doc. No. 18) are

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This action now proceeds only on plaintiff’s due process claims against defendants

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John Amaya, R. Alkire, Cruz, A. Gonzales, Jr., Richard Huerta, Theresa

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Lewandowski, Arnel DeLos Santos, and M. Robles;

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3.

All other claims and defendants in the first amended complaint are dismissed; and

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This case is referred back to the assigned magistrate judge for further proceedings.

IT IS SO ORDERED.
Dated:

November 19, 2020
UNITED STATES DISTRICT JUDGE

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