Opinion
CASE NO. 1:10-cv-00611-LJO-MJS (PC)
07-20-2015
ELVIN JOHN CABRERA, Plaintiff, v. THOMAS M. MADDOCK, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(1) FOR SERVICE OF COGNIZABLE CLAIMS AGAINST DEFENDANTS GENTRY, SANCHEZ, SIGSTEN, BUECHNER, JAKABUSKY, AND KINGSTON IN FIRST AMENDED COMPLAINT, AND
(2) TO DISMISS ALL OTHER CLAIMS AND DEFENDANTS WITH PREJUDICE
(ECF No. 16)
THIRTY (30) DAY DEADLINE
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought 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 of the United States District Court for the Eastern District of California.
On June 1, 2015, the Magistrate Judge issued findings and recommendations for service of Plaintiff's cognizable Fourteenth Amendment claims and dismissal of all other claims with prejudice. (ECF No. 16.) Plaintiff filed objections. (ECF No. 22.)
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.
Plaintiff concedes that several of his alleged claims must be dismissed. However, he argues that he should be allowed to proceed on the following additional claims, found not to be cognizable the Magistrate Judge: a Due Process claim regarding whether he had a meaningful opportunity to be heard regarding his gang validation, an Equal Protection claim, a Retaliation claim, a claim for Cruel and Unusual Punishment, a Conspiracy claim, a claim for supervisory liability, and a claim that regulations applicable to the gang validation process are vague and overbroad. Having reviewed Plaintiff's complaint and the objections, the undersigned concludes that the objections do not raise an issue of fact or law under the findings and recommendations.
Plaintiff also requests referral for alternative dispute resolution. However, this request is premature because no Defendants have been served in this action. Accordingly, Plaintiff's request will be denied without prejudice.
Based on the foregoing, it is HEREBY ORDERED that:
1. The Court adopts the findings and recommendations, filed June 1, 2015 (ECF No. 16), in full;
2. Plaintiff's request for referral for alternative dispute resolution is denied without prejudice;
3. Plaintiff shall proceed on his Fourteenth Amendment Due Process claim for money damages against Defendants Gentry, Sanchez, Sigsten, Buechner, Jakabusky, and Kingston, in their individual capacities;
4. All other claims asserted in the first amended complaint and all other named Defendants are DISMISSED with prejudice,
5. Service shall be initiated on the following Defendants:
LT. J. GENTRY - CCI Gang Investigator,
SGT. E. SANCHEZ - CCI Gang Investigator,
SIGSTEN - CCI Gang Investigator,
M. BUECHNER - Special Service Agent, OCS,
D. JAKABUSKY - Special Service Agent, OCS, and
B. KINGSTON - Special Service Agent, OCS.
6. The Clerk of the Court shall send Plaintiff six (6) USM-285 forms, six (6) summons, a Notice of Submission of Documents form, an instruction sheet and a copy of the first amended complaint filed November 15, 2012;
7. Within thirty (30) days from the date of this order, Plaintiff shall complete and return to the Court the Notice of Submission of Documents along with the following documents:
a. Completed summons,
b. One completed USM-285 form for each Defendant listed above,
c. Seven (7) copies of the endorsed first amended complaint filed November 15, 2012;
IT IS SO ORDERED.
8. Plaintiff need not attempt service on Defendants and need not request waiver of service. Upon receipt of the above-described documents, the Court shall direct the United States Marshal to serve the above-named Defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs; and
9. The failure to comply with this order will result in dismissal of this action.
Dated: July 20 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE