(PC) Harrell v. Walmart et al, No. 2:2015cv00576 - Document 24 (E.D. Cal. 2016)
Court Description: ORDER signed by District Judge John A. Mendez on 6/22/16 ordering The findings and recommendations filed April 13, 2016 (ECF No. 20), are adopted infull. All claims against defendants Figaro, Garrison and Judge Bowers, are DISMISSED without leave to amend, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (fails to state a claim), (iii) (claim asserted against immune defendant). The malicious prosecution claim against Belyea is DISMISSED IN PART, without leave to amend, but only to the degree it i s based upon alleged perjury at the probable cause hearing. Plaintiff is permitted to proceed against Belyea on (a) the malicious prosecution claim, to the degree it is based upon the submission of an allegedly false police report, and (b) the false arrest claim.(Plummer, M) Modified on 6/23/2016 (Plummer, M).
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(PC) Harrell v. Walmart et al Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA N. HARRELL, 12 Plaintiff, 13 14 No. 2:15-cv-0576 JAM AC (PS) v. ORDER WAL-MART, et al., 15 Defendant. 16 Plaintiff, proceeding pro se and in forma pauperis, has filed this civil rights action seeking 17 18 relief under 42 U.S.C. § 1983.1 The matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 13, 2016, the magistrate judge filed findings and recommendations herein which 21 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 22 and recommendations were to be filed within 21 days. ECF No. 20. Plaintiff has filed objections 23 to the findings and recommendations. ECF No. 22. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 court finds the findings and recommendations to be supported by the record and by proper 27 1 28 Although plaintiff indicates that he is in custody, he does not seek habeas relief, nor does he challenge the conditions of his confinement. 1 Dockets.Justia.com 1 analysis. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations filed April 13, 2016 (ECF No. 20), are adopted in 4 5 full; 2. All claims against defendants Figaro, Garrison and Judge Bowers, are 6 DISMISSED without leave to amend, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (fails to state a 7 claim), (iii) (claim asserted against immune defendant); 8 9 10 11 3. The malicious prosecution claim against Belyea is DISMISSED IN PART, without leave to amend, but only to the degree it is based upon alleged perjury at the “probable cause” hearing; and 4. Plaintiff is permitted to proceed against Belyea on (a) the malicious 12 prosecution claim, to the degree it is based upon the submission of an allegedly false police 13 report, and (b) the false arrest claim. 14 DATED: June 22, 2016 15 /s/ John A. Mendez__________________________ 16 UNITED STATES DISTRICT COURT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2
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