(PC) Luster v. Amezcua et al, No. 1:2016cv00554 - Document 28 (E.D. Cal. 2018)
Court Description: ORDER ADOPTING 26 Findings and Recommendations; ORDER for This Case to Proceed Only Against Defendant Amezcua for Retaliation Under the First Amendment, and Dismissing All Other Claims and Defendants for Failure to State a Claim, signed by Chief Judge Lawrence J. O'Neill on 9/22/18. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAPHNYE S. LUSTER, 12 13 14 15 16 17 18 Plaintiff, vs. RAUL H. AMEZCUA, et al., Defendants. 1:16-cv-00554-LJO-GSA-PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (ECF No. 26.) ORDER FOR THIS CASE TO PROCEED ONLY AGAINST DEFENDANT AMEZCUA FOR RETALIATION UNDER THE FIRST AMENDMENT, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM (ECF No. 24.) 19 20 21 Daphnye S. Luster (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a 23 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 On August 27, 2018, the court entered findings and recommendations, recommending 25 that this action proceed only against defendant Raul H. Amezcua for retaliation under the First 26 Amendment, and that all other claims be dismissed from this action based on Plaintiff=s failure 27 to state a claim. (ECF No. 26.) On September 13, 2018, Plaintiff filed a statement of non- 28 opposition to the findings and recommendations. (ECF No. 27.) 1 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 2 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 3 court finds the findings and recommendations to be supported by the record and proper analysis. 4 Accordingly, THE COURT HEREBY ORDERS that: 5 1. 6 7 The findings and recommendations issued by the Magistrate Judge on August 27, 2018, are ADOPTED in full; 2. This action now proceeds with Plaintiff’s Second Amended Complaint, filed on 8 June 11, 2018, against defendant Raul H. Amezcua for retaliation under the First 9 Amendment; 10 3. All remaining claims and defendants are dismissed from this action; 11 4. Defendants Warden Debra K. Johnson, Captain M. Villegas, Sergeant L. Perez, 12 and Appeals Coordinator B. Fortner are dismissed from this action for Plaintiff’s 13 failure to state any claims against them; 14 5. Plaintiff’s claims for supervisory liability, failure to protect, and violation of due 15 process are dismissed from this action for Plaintiff’s failure to state a claim upon 16 which relief may be granted; 17 6. Villegas, Perez, and Fortner from this case on the court’s docket; and 18 19 The Clerk of Court is directed to reflect the dismissal of defendants Johnson, 7. 20 This case is referred back to the Magistrate Judge for further proceedings, including initiation of service of process. 21 22 23 24 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ September 22, 2018 UNITED STATES CHIEF DISTRICT JUDGE 25 26 27 28 2
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