(PC) Dillingham v. Garcia et al, No. 1:2019cv00461 - Document 60 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 50 Findings and Recommendations in full; ORDER for this case to proceed against Defendant J. Garcia for use of excessive force, failure to protect Plaintiff and conspiracy; and Dismissing all other claims and Defendants for failure t o state a claim; this case is referred back to the Magistrate Judge for further proceedings,including initiation of service of process, signed by District Judge Anthony W. Ishii on 07/21/2021. (S. Kernan, C. Pfeiffer, A. Sotelo, R. Soto, D. Dozer and J. Hormon terminated) (Martin-Gill, S)

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(PC) Dillingham v. Garcia et al Doc. 60 Case 1:19-cv-00461-AWI-GSA Document 60 Filed 07/22/21 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY DILLINGHAM, 12 13 14 Plaintiff, vs. 1:19-cv-00461-AWI-GSA-PC ORDER ADOPTING AMENDED FINDINGS AND RECOMMENATIONS IN FULL (ECF No. 50.) J. GARCIA, et al., 15 Defendants. 16 17 18 ORDER FOR THIS CASE TO PROCEED AGAINST DEFENDANT J. GARCIA FOR USE OF EXCESSIVE FORCE, FAILURE TO PROTECT PLAINTIFFF, AND CONSPIRACY; AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM 19 Jerry Dillingham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action 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 February 10, 2021, the court entered findings and recommendations, recommending 23 that this action proceed only against defendant J. Garcia for use of excessive force. (ECF No. 24 43.) On March 4, 2021, Plaintiff filed objections to the findings and recommendations. (ECF 25 No. 47.) 26 On March 15, 2021, the court amended the findings and recommendations, to recommend 27 that this action proceed against defendant J. Garcia for use of excessive force, failure to protect 28 Plaintiff, and conspiracy, and all other claims and defendants be dismissed from this action based 1 Dockets.Justia.com Case 1:19-cv-00461-AWI-GSA Document 60 Filed 07/22/21 Page 2 of 2 1 on Plaintiff’s failure to state a claim. (ECF No. 50.) On July 19, 2021, Plaintiff filed objections. 2 (ECF No. 58.) 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 5 including Plaintiff’s objections, the court finds the amended findings and recommendations to be 6 supported by the record and proper analysis. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. March 15, 2021, are adopted in full; 9 10 The amended findings and recommendations issued by the magistrate judge on 2. This case now proceeds with Plaintiff’s Second Amended Complaint, filed on 11 September 8, 2020, against defendant J. Garcia for use of excessive force and 12 failure to protect Plaintiff, in violation of the Eighth Amendment, and for 13 conspiracy, but no other claims against any of the Defendants; 14 3. Plaintiff’s claims for retaliation, violation of equal protection, violation of the 15 ADA, inadequate medical care, and state law claims, are dismissed based on 16 Plaintiff’s failure to state a claim; 17 4. Defendants C/O J. Harmon, C/O D. Dozer, Sergeant B. Stane, Lieutenant A. 18 Sotelo, Warden C. Pfeiffer, C/O F. Garcia (father of C/O J. Garcia), S. Kernan 19 (CDCR Secretary), R. Soto (inmate), and Ralph Diaz (CDCR Secretary) are 20 dismissed for Plaintiff’s failure to state any claims against them; and 21 22 5. This case is referred back to the Magistrate Judge for further proceedings, including initiation of service of process. 23 24 IT IS SO ORDERED. 25 Dated: July 21, 2021 SENIOR DISTRICT JUDGE 26 27 28 2

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