(PC) Pouncil v. Lopez, No. 1:2017cv00547 - Document 22 (E.D. Cal. 2019)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants 20 , 21 , signed by District Judge Anthony W. Ishii on 1/11/2019: This action proceeds on Plaintiff's Fourteenth Amendment equal protection claim aga inst Defendant Lopez; The Clerk of the Court is directed to update the docket and caption consistent with this order; and This matter is referred back to the assigned Magistrate Judge for further proceedings, including initiation of service of process. (Hellings, J)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MADERO POUNCIL, 10 Plaintiff, 11 vs. 12 D. LOPEZ, 13 Defendant. 14 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00547-AWI-BAM (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS (Doc. Nos. 20, 21) Plaintiff Madero Pouncil is a state prisoner proceeding pro se and in forma pauperis in 16 17 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 18 Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. On November 30, 2018, the Magistrate Judge issued findings and recommendations 19 20 finding that Plaintiff’s second amended complaint states a cognizable Fourteenth Amendment 21 equal protection claim against Defendant Lopez, but fails to state a cognizable claim against 22 Defendant Stu Sherman or for declaratory relief. (Doc. No. 20.) The Magistrate Judge therefore 23 recommended that this action proceed only on Plaintiff’s Fourteenth Amendment equal 24 protection claim against Defendant Lopez, and that Defendant Stu Sherman and Plaintiff’s 25 request for declaratory relief be dismissed, with prejudice. (Id. at 5-6.) The findings and 26 recommendations were served that same date, and allowed fourteen days to file objections. (Id.) 27 Plaintiff timely filed objections, dated December 13, 2018. (Doc. No. 21.) 28 /// 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 2 a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s 3 objections, the Court finds the findings and recommendations to be supported by the record and 4 by proper analysis. Plaintiff objects that if the litigation reveals that Defendant Stu Sherman has 5 violated his rights, then he should be able to resubmit him as a defendant. On the current record 6 and allegations, Plaintiff has stated no claim against Defendant Sherman, and therefore his 7 dismissal is appropriate. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. 10 11 12 13 14 15 16 17 18 The findings and recommendations, issued on November 30, 2018 (Doc. No. 20), are adopted in full; 2. Defendant Stu Sherman and Plaintiffs’ request for declaratory relief are dismissed, with prejudice, for Plaintiff's failure to state a cognizable claim; 3. This action proceeds on Plaintiff’s Fourteenth Amendment equal protection claim against Defendant Lopez; 4. The Clerk of the Court is directed to update the docket and caption consistent with this order; and 5. This matter is referred back to the assigned Magistrate Judge for further proceedings, including initiation of service of process. 19 20 IT IS SO ORDERED. 21 Dated: January 11, 2019 22 SENIOR DISTRICT JUDGE 23 24 25 26 27 28 2

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