Lupe Nieto Jr. v. Hodge et al, No. 1:2010cv01397 - Document 17 (E.D. Cal. 2011)
Court Description: ORDER ADOPTING IN FULL The Magistrate Judge's FINDINGS AND RECOMMENDATIONS Dismissing Plaintiff's Eighth Amendment Claim and Defendants City of Clovis, County of Fresno, and Does 1-20 Inclusive 12 , signed by Chief Judge Anthony W. Ishii on 1/18/11: Plaintiff's claim for a violation of his Eighth Amendment right from cruel and unusual punishment is DISMISSED. (Hellings, J)
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Lupe Nieto Jr. v. Hodge et al Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUPE NIETO, JR., Case No.: 1:10-cv-01397-AWI-JLT (PC) 12 ORDER ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS DISMISSING PLAINTIFF’S EIGHTH AMENDMENT CLAIM AND DEFENDANTS CITY OF CLOVIS, COUNTY OF FRESNO, AND DOES 1-20, INCLUSIVE Plaintiff, 13 vs. 14 DRAKE HODGE, et al., 15 16 17 Defendants. / 18 Lupe Nieto, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with a 19 civil rights action pursuant to 42 U.S.C. § 1983. The Magistrate Judge screened Plaintiff’s Amended 20 Complaint pursuant to 28 U.S.C. §1915A, and found that it states cognizable claims against 21 defendant Drake Hodge on Fourth and Fourteenth Amendment grounds related to the use of 22 excessive force, but Plaintiff failed to state claims against other defendants. Therefore, the 23 Magistrate Judge ordered Plaintiff to either file an amended complaint or notify the Court that he 24 wished to proceed only on the claims found to be cognizable. (Doc. 10). 25 On December 6, 2010, Plaintiff notified the Court that he does not wish to amend his 26 complaint, and Plaintiff is willing to proceed only on the cognizable claim within his Amended 27 Complaint identified by the Court in its Order. (Doc. 11). Therefore, the Magistrate Judge 28 recommended that (1) Plaintiff’s claim for a violation of his Eighth Amendment right to freedom 1 Dockets.Justia.com 1 from cruel and unusual punishment be dismissed; and (2) defendants City of Clovis, County of 2 Fresno, and “Does 1-20, inclusive” be dismissed from the action. (Doc. 12). 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley 4 United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of 5 the case. Having carefully reviewed the entire file, the Court finds that the findings and 6 recommendation are supported by the record and by proper analysis. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. 9 10 FULL; 2. 11 12 The Findings and Recommendations filed December 15, 2010, are ADOPTED IN Plaintiff’s claim for a violation of his Eighth Amendment right from cruel and unusual punishment is DISMISSED; 4. 13 Defendants City of Clovis, County of Fresno, and “Does 1-20, inclusive” are DISMISSED. 14 15 IT IS SO ORDERED. 16 17 Dated: 0m8i78 January 18, 2011 CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2
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