(PC) McCurdy v. Kernan et al, No. 1:2017cv01356 - Document 18 (E.D. Cal. 2018)

Court Description: ORDER Adopting 17 Findings and Recommendations, Dismissing Certain Claims and Defendants, and Referring Matter back to the Magistrate Judge for Initiation of Service of Process, signed by Chief Judge Lawrence J. O'Neill on 4/23/18. Buatista added. S. Kernan (Secretary of CDCR), Chris Lesniak (Captain at CSP-Corcoran), Dave Davey (Warden at CSP-Corcoran) and J. Espinoza (Lieutenant at CSP-Corcoran) terminated. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES C. McCURDY, 12 Plaintiff, 13 14 v. S. KERNAN, et al., 15 Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-01356-LJO-SAB (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING CERTAIN CLAIMS AND DEFENDANTS, AND REFERRING MATTER BACK TO THE MAGISTRATE JUDGE FOR INITIATION OF SERVICE OF PROCESS [ECF Nos. 16, 17] Plaintiff James C. McCurdy is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On October 30, 2017, the Magistrate Judge filed Findings and Recommendations, 20 recommending that this action proceed against Defendant Bautista for excessive force in violation of 21 the Eighth Amendment and battery under California law. (ECF No. 17.) It was recommended that all 22 other claims and defendants be dismissed for failure to state a cognizable claim for relief. (Id.) The 23 Findings and Recommendations were served on Plaintiff and contained notice that objections were to 24 be filed within thirty days. (Id.) To date, no objections have been filed, and the time for doing so has 25 passed. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de 27 novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and 28 Recommendations to be supported by the record and by proper analysis. 1 1 2 Accordingly, it is HEREBY ORDERED that: 3 1. The March 21, 2018 findings and recommendations (ECF No. 17) are adopted in full; 4 2. This action shall proceed on against Defendant Bautista for excessive force in violation 5 of the Eighth Amendment and battery under California law; 3. 6 Defendants Kernan, Dave Davey, Chris Lesniak, J. Espinoza, D. Case, J. Hubbard, J. 7 Ramirez, J. Cortez, J. Ledesma, G. Viduya, M. Mendoza, Michael Penn, D. Grimsley, M. Alonso, J. 8 Clingerman, N. Balaba, F. Torres, and M. Itriago are dismissed from this action for Plaintiff’s failure 9 to state a cognizable claim against them; 4. All other causes of action are dismissed for Plaintiff’s failure to state a cognizable 12 5. Plaintiff’s request for declaratory relief is dismissed; and 13 6. The matter is referred back to the assigned Magistrate Judge for initiation of service of 10 11 14 claim; process. 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ April 23, 2018 UNITED STATES CHIEF DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2