Opinion
Case No.: 1:16-cv-01267-LJO-SAB (PC)
07-09-2018
DELBERT J. SMITH, Plaintiff, v. C. HERNANDEZ, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS (Doc. No. 43)
Plaintiff Delbert J. Smith is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.
On November 9, 2017, the assigned magistrate judge screened Plaintiff's first amended complaint pursuant to 28 U.S.C. § 1915A(a), and found that it states a claim against Officers C. Hernandez, Flores-Alvarenga, Zuniga, and Cramer for excessive force in violation of the Eighth Amendment and retaliation in violation of the First Amendment, and against Officer C. Hernandez for deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment. (Doc. No. 43.) The magistrate judge further found that all other claims against those officers should be dismissed for the failure to state a cognizable claim, and that Plaintiff's claims against Officer Montanez and Sergeant Carranza should be dismissed without prejudice as improperly joined in this action pursuant to Rule 20 of the Federal Rules of Civil Procedure. (Id.) Finally, the magistrate judge found that Plaintiff's claim for injunctive relief should be dismissed as moot. (Id.)
Plaintiff was given thirty days to file his objections to the findings and recommendations. (Id.) Plaintiff did not file any objections, and the time in which to do so has now passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the undersigned has conducted a de novo review of Plaintiff's case. The undersigned concludes that the findings and recommendations are supported by the record and by proper analysis.
Accordingly,
1. The findings and recommendations issued on November 9, 2017 (Doc. No. 43) are adopted in full;IT IS SO ORDERED.
2. This action shall proceed against Officers C. Hernandez, Flores-Alvarenga, Zuniga, and Cramer for excessive force in violation of the Eighth Amendment and retaliation in violation of the First Amendment, and against Officer C. Hernandez for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment;
3. All other claims against Officers C. Hernandez, Flores-Alvarenga, Zuniga, and Cramer are dismissed without leave to amend for failure to state a claim;
4. Plaintiff's claims against Officer Montanez and Sergeant Carranza are dismissed without prejudice as improperly joined in this action pursuant to Rule 20 of the Federal Rules of Civil Procedure; and
5. Plaintiff's claim for injunctive relief is dismissed as moot.
Dated: July 9 , 2018
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE