-MJS (PC) Moten v. Adams et al, No. 1:2007cv00924 - Document 59 (E.D. Cal. 2011)

Court Description: ORDER Adopting FINDINGS AND RECOMMENDATIONS And Dismissing Claims Against All Defendants Other Than J. Gonzales (ECF Nos. 55 , 56 , 57 & 58 ), signed by Chief Judge Anthony W. Ishii on 5/17/2011. (Fahrney, E)
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-MJS (PC) Moten v. Adams et al Doc. 59 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JESSE MOTEN, 10 11 12 CASE NO. 1:07-cv-924-AWI-MJS (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CLAIMS AGAINST ALL DEFENDANTS OTHER THAN J. GONZALES v. DERREL G. ADAMS, et al., (ECF Nos. 55, 56, 57 & 58) 13 Defendants. / 14 15 Plaintiff Jesse Moten, a state prisoner proceeding pro se and in forma pauperis, has filed this 16 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 17 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 18 On March 17, 2011, the Magistrate Judge filed a Findings and Recommendation 19 recommending that all Defendants other than J. Gonzales be dismissed from this action. The 20 Magistrate Judge screened Plaintiff’s Second Amended Complaint, filed on March 11, 2011, and 21 found that Plaintiff had stated a cognizable claim for use of excessive force against Defendant 22 Gonzales but had failed to state a claim in all other respects and against all other Defendants. 23 Plaintiff has filed objections to the Findings and Recommendation arguing that he stated a claim in 24 other respects as well. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 26 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings 27 and Recommendations to be supported by the record and by proper analysis. Contrary to Plaintiff’s 28 allegations in the objections, the Magistrate Judge correctly screened the complaint pursuant to 28 1 Dockets.Justia.com 1 U.S.C. § 1915A. To the extent Plaintiff know is trying to bring additional facts to the court’s 2 attention by submitting an affidavit along with his objections, Plaintiff has been given numerous 3 opportunities to amend his complaint and state a claim and no further amendment will be given at 4 this time. See Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (if court determines that complaint 5 fails to state claim, leave to amend should be granted once to extent that complaint's deficiencies can 6 be cured). 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The Findings and Recommendations, filed March 17, 2011, is adopted; 9 2. Plaintiff has stated a cognizable claim against Defendant J. Gonzales for use of 10 excessive force in violation of the Eighth Amendment and such claim remains 11 pending in this action; 12 3. 13 14 WITH PREJUDICE for failure to state a claim upon which relief can be granted; 4. 15 16 17 All other claims brought in Plaintiff’s Second Amended Complaint are DISMISSED All Defendants other than J. Gonzales are DISMISSED as party-Defendants in this action; 5. Service shall be ordered on Defendant J. Gonzales. IT IS SO ORDERED. 18 19 Dated: 0m8i78 May 17, 2011 CHIEF UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2