(PC) Drake v. Kernan, et al., No. 1:2017cv01500 - Document 31 (E.D. Cal. 2018)

Court Description: ORDER ADOPTING 28 Findings and Recommendations, DISMISSING Certain Claims, and Referring the Matter Back to the Magistrate Judge for Initiation of Service of Process, signed by District Judge Anthony W. Ishii on 8/1/18. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAM DRAKE, 12 13 14 15 Plaintiff, v. SCOTT KERNAN, et al., Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-01500-AWI-SAB (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING CERTAIN CLAIMS, AND REFERRING THE MATTER BACK TO THE MAGISTRATE JUDGE FOR INITIATION OF SERVICE OF PROCESS [ECF Nos. 26, 27, 28] Plaintiff Sam Drake is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On May 10, 2018, the Magistrate Judge filed Findings and Recommendations recommending 20 that this action proceed against Defendants Navarro, Gonzales, Allison, Sexton, Moak, and McCabe 21 for conspiracy and failure to protect, against Defendants Navarro and Gonzales for serving 22 contaminated food and retaliation, and against Defendant Gonzales for a due process violation. (ECF 23 No. 28.) It was also recommended that Plaintiff’s due process allegation regarding false allegations 24 and confiscation of his television and request for declaratory relief be dismissed for failure to state a 25 cognizable claim for relief, and Plaintiff’s motion for appointment of counsel be denied. (Id.) The 26 Findings and Recommendations were served on Plaintiff and contained notice that objections were to 27 be filed within thirty (30) days. (Id.) On July 2, 2018, Plaintiff filed a notice indicating that he has no 28 intentions of filing any objections. (ECF No. 30.) 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de 2 novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and 3 Recommendations to be supported by the record and by proper analysis. 4 Accordingly, it is HEREBY ORDERED that: 5 1. The May 10, 2018, Findings and Recommendations (ECF No. 28) are adopted in full; 6 2. This action shall proceed against Defendants Navarro, Gonzales, Allison, Sexton, 7 Moak, and McCabe for conspiracy and failure to protect, against Defendants Navarro 8 and Gonzales for serving contaminated food and retaliation, and against Defendant 9 Gonzales for a due process violation; 10 3. Plaintiff’s due process allegation regarding false allegations and confiscation of his 11 television and request for declaratory relief are dismissed for failure to state a 12 cognizable claim for relief; 13 4. Plaintiff’s motion for appointment of counsel is denied; and 14 5. The matter is referred back to the assigned Magistrate Judge for initiation of service of 15 process. 16 17 IT IS SO ORDERED. 18 Dated: August 1, 2018 19 SENIOR DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2