Opinion
1:19-cv-00461-AWI-GSA-PC
07-21-2021
JERRY DILLINGHAM, Plaintiff, v. J. GARCIA, et al., Defendants.
ORDER ADOPTING AMENDED FINDINGS AND RECOMMENATIONS IN FULL (ECF No. 50.) 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
Jerry Dillingham (“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 February 10, 2021, the court entered findings and recommendations, recommending that this action proceed only against defendant J. Garcia for use of excessive force. (ECF No. 43.) On March 4, 2021, Plaintiff filed objections to the findings and recommendations. (ECF No. 47.)
On March 15, 2021, the court amended the findings and recommendations, to recommend that this action proceed against defendant J. Garcia for use of excessive force, failure to protect Plaintiff, and conspiracy, and all other claims and defendants be dismissed from this action based on Plaintiffs failure to state a claim. (ECF No. 50.) On July 19, 2021, Plaintiff filed objections. (ECF No. 58.)
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, including Plaintiffs objections, the court finds the amended findings and recommendations to be supported by the record and proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The amended findings and recommendations issued by the magistrate judge on March 15, 2021, are adopted in full;
2. This case now proceeds with Plaintiffs Second Amended Complaint, filed on September 8, 2020, against defendant J. Garcia for use of excessive force and failure to protect Plaintiff, in violation of the Eighth Amendment, and for conspiracy, but no other claims against any of the Defendants;
3. Plaintiffs claims for retaliation, violation of equal protection, violation of the ADA, inadequate medical care, and state law claims, are dismissed based on Plaintiffs failure to state a claim;
4. Defendants C/O J. Harmon, C/O D. Dozer, Sergeant B. Stane, Lieutenant A. Sotelo, Warden C. Pfeiffer, C/O F. Garcia (father of C/O J. Garcia), S. Kernan (CDCR Secretary), R. Soto (inmate), and Ralph Diaz (CDCR Secretary) are dismissed for Plaintiff s failure to state any claims against them; and
5. This case is referred back to the Magistrate Judge for further proceedings, including initiation of service of process.
IT IS SO ORDERED.