Opinion
CASE NO. 1:15-cv-01473-LJO-MJS (PC)
06-22-2016
BRIAN C. APPLEGATE, Plaintiff, v. LOUIS MORENO, JR. Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(1) TO DISMISS NON-COGNIZABLE CLAIMS WITH PREJUDICE, AND
(2) TO REQUIRE DEFENDANT TO RESPOND TO THE COMPLAINT
(ECF No. 10)
THIRTY (30) DAY DEADLINE
Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action initially was filed on May 29, 2015 in the Superior Court of California, County of Kings. (ECF No. 1.) Defendant removed the action to this Court on September 28, 2015. (Id.) Along with his notice of removal, Defendant asked that the Court screen Plaintiff's complaint and allow Defendant thirty days following the Court's screening order to respond. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.
On May 20, 2016, the Magistrate Judge screened Plaintiff's complaint, and found that it stated the following cognizable claims for damages against Defendant Moreno: Eighth Amendment failure to protect, First Amendment retaliation, Bane Act, ordinary negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. (ECF No. 8.) However, the Magistrate Judge concluded that Plaintiff's remaining claims were not cognizable. Plaintiff was given the option to either file an amended complaint or to proceed only on the claims found to be cognizable. (Id.)
Plaintiff responded that he wished to proceed only on the cognizable claims. (ECF No. 9.) The Magistrate Judge issued findings and recommendations for Plaintiff to proceed on his cognizable claims, for the non-cognizable claims to be dismissed with prejudice, and for Defendant to be called to respond to the complaint within thirty days of the order adopting the findings and recommendations. (ECF No. 10.) No objections were filed and the time for doing so has passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, it is HEREBY ORDERED that:
1. The Court adopts the findings and recommendations, filed June 3, 2016, (ECF No. 10), in full;
2. Plaintiff shall proceed against Defendant Moreno on the following claims for damages: Eighth Amendment failure to protect, First Amendment retaliation, Bane Act, ordinary negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress;
3. All other claims asserted in the complaint are dismissed with prejudice; and
4. Defendant shall file an answer or motion within thirty (30) days from the date of this order.IT IS SO ORDERED.
Dated: June 22 , 2016
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE
5.