Romo v. Cate et al

Filing 57

ORDER signed by Judge Garland E. Burrell, Jr on 9/30/2014 ADOPTING the 53 findings and recommendations as amended by the magistrate judge's 9/16/14 order; the 47 motion to dismiss is GRANTED in part and DENIED in part in accordance with this order; and defendants J. Baker, Williams, Holstrom and Walker are DISMISSED from this action. (See Order for Details)(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

EZEQUIEL ROMO,

12

Plaintiff,

13
14

No. 2:11-cv-2898 GEB DAD P

v.

ORDER

MATTHEW CATE, et al.,

15

Defendants.

16
17

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

18

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

19

28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On August 29, 2014, the magistrate judge filed findings and recommendations that were

20
21

served on all parties and contained notice that any objections were to be filed within fourteen

22

days. The magistrate judge amended his findings and recommendations in an order dated

23

September 16, 2014. Plaintiff has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

24
25

court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

26

court finds the findings and recommendations to be supported by the record and by proper

27

analysis.

28

/////
1

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. The findings and recommendations filed August 29, 2014, are adopted as amended by

3

the magistrate judge’s order of September 16, 2014.

4

2. The motion to dismiss (Doc. No. 47) is granted in part and denied in part, as follows:

5

a. The motion to dismiss the claims for inadequate medical care, failure to train

6

and supervise, and violation of the Equal Protection clause is granted as to all defendants.

7

b. The motion to dismiss the claim for retaliatory placement on contraband

8

surveillance watch is granted as to all defendants except Virga and Stewart. As to

9

defendants Virga and Stewart, the motion to dismiss that claim is denied.

10

c.

The motion to dismiss the claim for retaliatory withholding of legal materials

11

is granted as to all defendants except for defendants Stewart, Buchanan, Engellener,

12

Mendoza, E. Baker, Montez and Hood. As to defendants Stewart, Buchanan, Engellener,

13

Mendoza, E. Baker, Montez and Hood, the motion to dismiss that claim is denied.

14

d.

The motion to dismiss the claim for deprivation of federal due process is

15

granted as to all defendants except defendants Virga and Stewart. As to defendants Virga

16

and Stewart, the motion to dismiss that claim is denied.

17

e.

The motion to dismiss all claims alleged under state law is granted as to all

18

defendants except for the claim for violation of due process under the California

19

Constitution. As to that claim, all defendants are dismissed except for defendants Virga

20

and Stewart, as to whom the motion to dismiss the state law claim for deprivation of due

21

process is denied.

22

f.

The motion to dismiss the Eighth Amendment claim for unconstitutional

23

conditions of confinement is granted as to defendants J. Baker, Williams, Holstrom and

24

Walker. As to all other defendants, the motion to dismiss the Eighth Amendment claim

25

for unconstitutional conditions of confinement is denied.

26

g.

plaintiff’s underlying administrative inmate appeals is granted as to all defendants.

27
28

The motion to dismiss all claims based on the processing or review of

////
2

1
2
3

h.

Defendants J. Baker, Williams, Holstrom and Walker are dismissed from this

action.
Dated: September 30, 2014

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

hm
romo2898.805

26
27
28
3