(PC) Shehee v. Perez et al, No. 1:2016cv01346 - Document 46 (E.D. Cal. 2018)

Court Description: ORDER ADOPTING 39 FINDINGS AND RECOMMENDATIONS Regarding Dismissal of Certain Claims and Defendants signed by District Judge Anthony W. Ishii on 05/09/2018. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY ELL SHEHEE, 12 Plaintiff, 13 14 15 v. Case No. 1:16-cv-01346-AWI-BAM (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS PEREZ, et al., (ECF No. 39) Defendants. 16 17 Plaintiff Gregory Ell Shehee (“Plaintiff”) is a former county jail inmate proceeding pro se 18 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The incidents at 19 issue in this litigation occurred while Plaintiff was housed in Coalinga State Hospital, where he 20 was civilly committed. 21 On December 4, 2017, the assigned Magistrate Judge screened Plaintiff’s first amended 22 complaint under 28 U.S.C. § 1915A, and found that it stated a cognizable claim for excessive 23 force in violation of the Due Process Clause of the Fourteenth Amendment against Defendant 24 Faith Perez for the purported two incidents which occurred in November 2014 and the one 25 incident on February 8, 2015, and a cognizable claim for failure to protect in violation of the Due 26 Process Clause of the Fourteenth Amendment against Defendant Lain, but failed to state any 27 other cognizable claims against any other defendants. The Court ordered Plaintiff to either file a 28 second amended complaint or notify the Court of his willingness to proceed only on the 1 1 cognizable claims. (ECF No. 31.) Following several extensions of time, on February 23, 2018, 2 Plaintiff requested that the Court proceed on the claims against Defendants Perez and Lain. (ECF 3 No. 38.) 4 On February 28, 2018, the Magistrate Judge issued findings and recommendations that: 5 (1) this action proceed on Plaintiff’s first amended complaint, filed on October 30, 2017, for 6 excessive force in violation of the Fourteenth Amendment against Defendant Perez and for failure 7 to protect in violation of the Fourteenth Amendment against Defendant Lain; and (2) all other 8 claims and Defendants be dismissed based on Plaintiff’s failure to state claims upon which relief 9 may be granted. (ECF No. 39.) The findings and recommendations were served on Plaintiff and 10 contained notice that any objections were to be filed within fourteen (14) days after service. (Id. 11 at 12–13.) Pursuant to two notices of changes in Plaintiff’s address, the findings and 12 13 recommendations were re-served on Plaintiff at his new address on March 8, 2018, and again on 14 April 5, 2018. (See ECF Nos. 41, 42, 43.) No objections have been filed, and the deadline in 15 which to do so has expired. 16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 17 de novo review of this case. Having carefully reviewed the entire file, the Court finds the 18 findings and recommendations to be supported by the record and by proper analysis. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The findings and recommendations issued on February 28, 2018, (ECF No. 39), are 21 adopted in full; 2. This action shall proceed on Plaintiff’s first amended complaint, filed October 30, 22 23 2017, (ECF No. 30), for excessive force in violation of the Fourteenth Amendment 24 against Defendant Perez and for failure to protect in violation of the Fourteenth 25 Amendment against Defendant Lain; 3. All other claims and Defendants are dismissed based on Plaintiff’s failure to state 26 27 28 claims upon which relief may be granted; and /// 2 1 2 4. This action is referred back to the assigned Magistrate Judge for further proceedings consistent with this order. 3 4 5 IT IS SO ORDERED. Dated: May 9, 2018 SENIOR DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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