(PC) Powell v. Widley et al, No. 1:2017cv00824 - Document 31 (E.D. Cal. 2018)

Court Description: ORDER ADOPTING 30 Findings and Recommendations; ORDER DENYINGDefendant's 23 Motion to Dismiss; ORDER DISMISSING Non-Served Defendants Without Prejudice, signed by District Judge Anthony W. Ishii on 8/1/18. (Marrujo, C)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAMEON LAMONT POWELL, 12 Plaintiff, 13 14 15 v. CORRECTIONAL OFFICER WIDLEY, et al., Defendants. 16 No. 1:17-cv-00824-AWI-JDP ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ORDER DENYING DEFENDANT’S MOTION TO DIMISS ORDER DISMISSING NON-SERVED DEFENDANTS WITHOUT PREJUDICE (ECF Nos. 23, 30) 17 Plaintiff Dameon Lamont Powell is a state prisoner proceeding pro se and in forma 18 19 pauperis with this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 21 302. 22 On October 16, 2017, Defendants T. C. Davies, Rodriguez, Vasquez, and Wilson filed a 23 motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 23.) 24 On June 28, 2018, the assigned magistrate judge issued findings and recommendations, 25 recommending the Defendants’ motion to dismiss be denied. (ECF No. 30 at 3.) The assigned 26 magistrate judge further recommended that defendants Widley and Zimmerman be dismissed 27 without prejudice under Rule 4(m) based on Plaintiff’s failure to effectuate service process and 28 failure to show cause why the non-served defendants should not be dismissed. (Id. at 4.) The 1 1 findings and recommendations were served on the parties and contained notice that any 2 objections thereto were to be filed within fourteen days after service. (Id.) No objections were 3 filed. 4 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 5 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 6 court finds the findings and recommendations to be supported by the record and proper analysis. 7 For these reasons, 8 1. 9 10 The findings and recommendations issued June 28, 2018 (ECF No. 30) are adopted in full; 2. 11 Defendants T. C. Davies, Rodriguez, Vasquez, and Wilson’s motion to dismiss (ECF No. 23) is denied; 12 3. Defendants Widley and Zimmerman are dismissed without prejudice; and 13 4. This matter is referred back to the assigned magistrate judge for further 14 proceedings. 15 16 17 IT IS SO ORDERED. Dated: August 1, 2018 SENIOR DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2