-SKO (PC) Butler v. Cate et al, No. 1:2009cv01544 - Document 15 (E.D. Cal. 2011)

Court Description: ORDER ADOPTING 14 FINDINGS AND RECOMMENDATIONS; Dismissing Due Process Claim; Dismissing Defendants Matthew Cate, Ivan Clay, F X Smith and Semsen; and Directing that Action Proceed on Equal Protection Claim Against Defendant Esquer, signed by Judge Oliver W. Wanger on 7/5/2011. (Marrujo, C)

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-SKO (PC) Butler v. Cate et al Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 STEPHON BUTLER, 10 Plaintiff, 11 12 CASE NO. 1:09-cv-01544-OWW-SKO PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; DISMISSING DUE PROCESS CLAIM; DISMISSING DEFENDANTS CATE, CLAY, SMITH AND SEMSEN; AND DIRECTING THAT ACTION PROCEED ON EQUAL PROTECTION CLAIM AGAINST DEFENDANT ESQUER v. MATTHEW CATE, et al., 13 Defendants. 14 (Docs. 11 and 14) 15 / 16 Plaintiff Stephon Butler, a former state prisoner proceeding pro se and in forma pauperis, 17 filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 27, 2009. The matter was 18 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 19 302. 20 On May 6, 2011, the Magistrate Judge screened Plaintiff’s amended complaint and 21 recommended that this action proceed against Defendant Esquer on Plaintiff’s equal protection claim 22 and that Plaintiff’s due process claim and Defendants Cate, Clay, Smith and Semsen based on 23 Plaintiff’s failure to state a claim. 28 U.S.C. § 1915A. Plaintiff had thirty days within which to file 24 an objection, if any, and he did not file one. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de 26 novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and 27 Recommendations to be supported by the record and by proper analysis. 28 1 Dockets.Justia.com 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Court adopts the Findings and Recommendations filed on May 6, 2011, in full; 3 2. This action shall proceed on Plaintiff’s amended complaint, filed March 17, 2010, 4 5 against Defendant Esquer on Plaintiff’s equal protection claim; 3. 6 7 under section 1983; 4. 8 9 Plaintiff’s due process claim is dismissed, with prejudice, for failure to state a claim Defendants Cate, Clay, Smith and Semsen are dismissed from this action based on Plaintiff’s failure to state any claims against them; and 5. This matter is referred back to the Magistrate Judge for further proceedings. 10 11 IT IS SO ORDERED. 12 Dated: July 5, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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