(PC) Gomez v. Alameida, et al, No. 1:2004cv05495 - Document 52 (E.D. Cal. 2011)
Court Description: ORDER Adopting 48 FINDINGS AND RECOMMENDATIONS; ORDER for this Case to Proceed on the Fourth Amended Complaint Against Defendant D. D. Ortiz for Retaliation, and DISMISSING all other Claims and Defendants without Leave to Amend signed by District Judge Lawrence J. O'Neill on 2/24/2011. (Sant Agata, S)
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(PC) Gomez v. Alameida, et al Doc. 52 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JEFFREY K. GOMEZ, 11 Plaintiff, 12 13 vs. EDWARD S. ALAMEIDA, JR., et al., 14 15 16 17 Defendants. 1:04-cv-05495-LJO-GSA-PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 48.) ORDER FOR THIS CASE TO PROCEED ON THE FOURTH AMENDED COMPLAINT AGAINST DEFENDANT D. D. ORTIZ FOR RETALIATION, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS WITHOUT LEAVE TO AMEND _____________________________/ Jeffrey K. Gomez ("Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. 20 On November 16, 2010, findings and recommendations were entered, recommending that 21 this action proceed on the Fourth Amended Complaint against only Defendant D. D. Ortiz on 22 Plaintiff's claim for retaliation, and that all other claims and defendants be dismissed without leave to 23 amend. (Doc. 48.) On February 11, 2011, Plaintiff filed objections to the findings and 24 recommendations. (Doc. 51.) Together with the objections, Plaintiff brings a motion for counsel, a 25 motion for in camera review, and a motion for recusal. Id. 26 27 28 In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including 1 Dockets.Justia.com 1 Plaintiff's objections, the Court finds the findings and recommendations to be supported by the 2 record and proper analysis. Plaintiff's motion for counsel, motion for in camera review, and motion 3 for recusal shall be referred back to the Magistrate Judge. 4 Accordingly, THE COURT HEREBY ORDERS that: 5 1. 6 7 2010, are ADOPTED in full; 2. 8 9 3. 4. 5. Plaintiff’s ADA claims are DISMISSED from this action under Rule 18, without prejudice to raising those claims in a separate action; 6. 16 17 Plaintiff’s claims arising from events occurring at San Quentin State Prison and Salinas Valley State Prison are DISMISSED from this action for lack of venue; 14 15 All remaining claims and defendants are DISMISSED from this action without leave to amend; 12 13 This action now proceeds on Plaintiff's Fourth Amended Complaint, filed on August 14, 2009, against only Defendant D. D. Ortiz on Plaintiff's claim for retaliation; 10 11 The Findings and Recommendations issued by the Magistrate Judge on November 16, Plaintiff's claims arising from events occurring after March 29, 2004, are DISMISSED from this action; 7. Plaintiff’s due process claims, supervisory liability claims, claims against defendants 18 in their official capacities, claims for inadequate appeals process, equal protection 19 claims, claims for failure to protect, and claims for declaratory and injunctive relief 20 are DISMISSED from this action based on Plaintiff’s failure to state a claim upon 21 which relief may be granted; 22 8. All other named defendants and the twenty Doe defendants are DISMISSED from 23 this action for Plaintiff’s failure to state a claim upon which relief may be granted 24 against them; 25 26 9. This action is REFERRED back to the Magistrate Judge for further proceedings, including service of process; and 27 28 2 1 10. Plaintiff's motion for counsel, motion for in camera review, and motion for recusal, 2 filed on February 11, 2011 along with Plaintiff's objections to the findings and 3 recommendations, are REFERRED back to the Magistrate Judge. 4 IT IS SO ORDERED. 5 Dated: b9ed48 February 24, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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