Luster v. Amezcua

Full title: DAPHNYE S. LUSTER, Plaintiff, v. RAUL H. AMEZCUA, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Sep 22, 2018

1:16-cv-00554-LJO-GSA-PC (E.D. Cal. Sep. 22, 2018)

Opinion

1:16-cv-00554-LJO-GSA-PC

09-22-2018

DAPHNYE S. LUSTER, Plaintiff, v. RAUL H. AMEZCUA, et al., Defendants.

Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(ECF No. 26.) ORDER FOR THIS CASE TO PROCEED ONLY AGAINST DEFENDANT AMEZCUA FOR RETALIATION UNDER THE FIRST AMENDMENT, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM
(ECF No. 24.)

Daphnye S. Luster ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On August 27, 2018, the court entered findings and recommendations, recommending that this action proceed only against defendant Raul H. Amezcua for retaliation under the First Amendment, and that all other claims be dismissed from this action based on Plaintiff's failure to state a claim. (ECF No. 26.) On September 13, 2018, Plaintiff filed a statement of non-opposition to the findings and recommendations. (ECF No. 27.)

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 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 proper analysis.

Accordingly, THE COURT HEREBY ORDERS that:

1. The findings and recommendations issued by the Magistrate Judge on August 27, 2018, are ADOPTED in full;

2. This action now proceeds with Plaintiff's Second Amended Complaint, filed on June 11, 2018, against defendant Raul H. Amezcua for retaliation under the First Amendment;

3. All remaining claims and defendants are dismissed from this action;

4. Defendants Warden Debra K. Johnson, Captain M. Villegas, Sergeant L. Perez, and Appeals Coordinator B. Former are dismissed from this action for Plaintiff's failure to state any claims against them;

5. Plaintiff's claims for supervisory liability, failure to protect, and violation of due process are dismissed from this action for Plaintiff's failure to state a claim upon which relief may be granted;

6. The Clerk of Court is directed to reflect the dismissal of defendants Johnson, Villegas, Perez, and Former from this case on the court's docket; and

7. This case is referred back to the Magistrate Judge for further proceedings, including initiation of service of process.

IT IS SO ORDERED.

Dated: September 22 , 2018

/s/ Lawrence J. O'Neill

UNITED STATES CHIEF DISTRICT JUDGE