(PC) Smith v. Hernandez et al, No. 1:2016cv01267 - Document 66 (E.D. Cal. 2018)

Court Description: ORDER ADOPTING 43 FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS, signed by Chief Judge Lawrence J. O'Neill on 07/9/2018. (Martin-Gill, S)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DELBERT J. SMITH, Plaintiff, 11 12 13 14 v. C. HERNANDEZ, et al., Defendants. 15 ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-01267-LJO-SAB (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS (Doc. No. 43) 16 Plaintiff Delbert J. Smith is appearing pro se and in forma pauperis in this civil rights action 17 pursuant to 42 U.S.C. § 1983. This matter was referred to a United States magistrate judge pursuant to 18 28 U.S.C. § 636(1)(B) and Local Rule 302. 19 On November 9, 2017, the assigned magistrate judge screened Plaintiff’s first amended 20 complaint pursuant to 28 U.S.C. § 1915A(a), and found that it states a claim against Officers C. 21 Hernandez, Flores-Alvarenga, Zuniga, and Cramer for excessive force in violation of the Eighth 22 Amendment and retaliation in violation of the First Amendment, and against Officer C. Hernandez for 23 deliberate indifference to plaintiff’s serious medical needs in violation of the Eighth Amendment. 24 (Doc. No. 43.) The magistrate judge further found that all other claims against those officers should 25 be dismissed for the failure to state a cognizable claim, and that Plaintiff’s claims against Officer 26 Montanez and Sergeant Carranza should be dismissed without prejudice as improperly joined in this 27 action pursuant to Rule 20 of the Federal Rules of Civil Procedure. (Id.) Finally, the magistrate judge 28 found that Plaintiff’s claim for injunctive relief should be dismissed as moot. (Id.) 1 Plaintiff was given thirty days to file his objections to the findings and recommendations. (Id.) 1 2 Plaintiff did not file any objections, and the time in which to do so has now passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 4 undersigned has conducted a de novo review of Plaintiff’s case. The undersigned concludes that the 5 findings and recommendations are supported by the record and by proper analysis. Accordingly, 6 7 1. The findings and recommendations issued on November 9, 2017 (Doc. No. 43) are adopted in full; 8 9 2. This action shall proceed against Officers C. Hernandez, Flores-Alvarenga, Zuniga, and 10 Cramer for excessive force in violation of the Eighth Amendment and retaliation in violation of 11 the First Amendment, and against Officer C. Hernandez for deliberate indifference to 12 Plaintiff’s serious medical needs in violation of the Eighth Amendment; 13 3. dismissed without leave to amend for failure to state a claim; 14 15 All other claims against Officers C. Hernandez, Flores-Alvarenga, Zuniga, and Cramer are 4. Plaintiff’s claims against Officer Montanez and Sergeant Carranza are dismissed without 16 prejudice as improperly joined in this action pursuant to Rule 20 of the Federal Rules of Civil 17 Procedure; and 18 5. Plaintiff’s claim for injunctive relief is dismissed as moot. 19 20 21 22 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ July 9, 2018 UNITED STATES CHIEF DISTRICT JUDGE 23 24 25 26 27 28 2