(PC) Harris v. Gipson et al, No. 1:2017cv00640 - Document 18 (E.D. Cal. 2017)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, Permitting Action to Proceed on Plaintiff's Excessive Force and Retaliation Claims, and DISMISSING Defendants Gipson and Cate for Failure to State a Claim 13 , 14 , 15 , 17 , signed by District Judge Dale A. Drozd on 12/20/2017: Matter is referred back to the assigned magistrate judge for initiation of service of process. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEVONTE B. HARRIS, 12 13 No. 1:17-cv-00640-DAD-SAB Plaintiff, 16 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, PERMITTING ACTION TO PROCEED ON PLAINTIFF’S EXCESSIVE FORCE AND RETALIATION CLAIMS, AND DISMISSING DEFENDANTS GIPSON AND CATE FOR FAILURE TO STATE A CLAIM 17 (Doc. Nos. 13–15, 17) 14 15 v. CONNIE GIPSON, et al., Defendants. 18 19 Plaintiff Devonte B. Harris is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On October 17, 2017, the assigned magistrate judge screened plaintiff’s first amended 23 complaint (Doc. No. 13) and directed plaintiff to either file a second amended complaint or notify 24 the court of his intent to proceed only on those claims alleged in his first amended complaint 25 which were found cognizable. (Doc. No. 14.) On October 27, 2017, plaintiff provided notice of 26 his intent to proceed only on the claims set forth in his first amended complaint found to be 27 cognizable. (Doc. No. 15.) On October 30, 2017, the magistrate judge therefore issued findings 28 and recommendations, recommending that this action proceed against defendants Briones, Torres, 1 1 Silva and Hernandez on plaintiff’s excessive use of force claim and against defendant Nail for 2 retaliation in violation of the First Amendment. (Doc. No. 17.) Those findings and 3 recommendations also recommended that all other claims and defendants be dismissed for failure 4 to state a cognizable claim for relief. (Id.) The parties were provided fourteen days during 5 which to file objections to those findings and recommendations. (Id.) To date, neither party has 6 done so, and the time for doing so has now passed. 7 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 8 de novo review of this case. Having carefully reviewed the entire file, the court finds the findings 9 and recommendations to be supported by the record and by proper analysis. 10 Accordingly, 11 1. 12 13 The October 30, 2017 findings and recommendations (Doc. No. 17) are adopted in full; 2. This action shall proceed on plaintiff’s excessive use of force claim against 14 defendants Briones, Torres, Silva, and Hernandez, and against defendant Nail for 15 retaliation in violation of the First Amendment; 16 3. 17 18 dismissed from this action for failure to state a cognizable claim; and 4. 19 20 21 Defendants Gipson and Cate, as well as plaintiff’s prayer for declaratory relief are The matter is referred back to the assigned magistrate judge for initiation of service of process. IT IS SO ORDERED. Dated: December 20, 2017 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 2

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