(PC) Shead v. Vang et al, No. 1:2009cv00006 - Document 18 (E.D. Cal. 2010)

Court Description: AMENDED ORDER ADOPTING Findings and Recommendations, and Dismissing Certain Claims and Defendants from Action 1 15 signed by Judge Oliver W. Wanger on 2/2/2010. (Figueroa, O)

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(PC) Shead v. Vang et al Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 HERMAN D. SHEAD, 10 Plaintiff, 11 12 CASE NO. 1:09-cv-00006-OWW-SMS PC AMENDED ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS FROM ACTION v. VANG, et al., (Docs. 1 and 15) 13 Defendants. / 14 15 Plaintiff Herman D. Shead is a state prisoner proceeding pro se and in forma pauperis in this 16 civil rights action pursuant to 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 72-302. 18 On September 8, 2009, the Magistrate Judge screened Plaintiff’s complaint and 19 recommended dismissal of certain claims and defendants. 28 U.S.C. § 1915A. Plaintiff filed timely 20 objections on October 1, 2009. 21 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 22 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings 23 and Recommendations to be supported by the record and by proper analysis. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The Findings and Recommendations, filed September 8, 2009, is adopted in full; 26 2. This action shall proceed against defendant Vang for use of excessive force in the 27 28 course of subduing Plaintiff during his diabetic seizure; /// 1 Dockets.Justia.com 1 3. Plaintiff’s First Amendment claim against Defendants Fogle, Bradford and Vera for 2 retaliation and conspiracy to maintain silence and cover up Vang’s excessive use of 3 force are dismissed, with prejudice, for failure to state a claim upon which relief may 4 be granted under § 1983; 5 4. Plaintiff’s claim for declaratory relief is dismissed with prejudice; 6 5. Plaintiff’s request for appointment of counsel is denied; 7 6. Plaintiff’s claims against Defendants in their official capacities are dismissed with 8 9 prejudice; 7. The Court shall exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) over 10 Plaintiff’s state tort claim against Defendant Vang, arising from Vang’s assault on 11 Plaintiff; 12 8 The Court will not exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) over 13 Plaintiff’s other state claims (Cal. Const. art. I, §17; Cal. Gov’t Code § 815.6; Cal. 14 Gov’t Code § 820.4; and Cal. Code regs. tit. 15, § 23268(b)), none of which state a 15 cause of action for which relief may be granted; 16 9. 17 18 19 The Court will not exercise supplemental jurisdiction over Plaintiff’s state claims against Fogle, Bradford, and Vera; and 10. The Clerk of Court shall reflect on the docket the dismissal of Defendants Fogle, Bradford, and Vera. 20 21 IT IS SO ORDERED. 22 Dated: February 2, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2

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