Gilmore v. Augustus

Full title: C. DWAYNE GILMORE, Plaintiff, v. D. AUGUSTUS, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jul 7, 2015

1:12-cv-00925-LJO-GSA-PC (E.D. Cal. Jul. 7, 2015)

Opinion

1:12-cv-00925-LJO-GSA-PC

07-07-2015

C. DWAYNE GILMORE, Plaintiff, v. D. AUGUSTUS, et al., Defendants.

Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(ECF No. 123; also resolves ECF No. 117.)
ORDER DENYING PLAINTIFF'S MOTION FOR SUBSTITUTION, OR IN THE ALTERNATIVE, FOR LEAVE TO SERVE PROCESS UPON DEFENDANT TORRES' LEGAL REPRESENTATIVE
(ECF No. 89.)
ORDER DENYING DEFENDANTS' MOTION TO STRIKE
(ECF No. 94.)
ORDER DISMISSING DEFENDANT TORRES FROM THIS ACTION, WITH PREJUDICE ORDER DISMISSING PLAINTIFF'S MEDICAL CLAIM FROM THIS ACTION

C. Dwayne Gilmore ("Plaintiff") is a state prisoner proceeding pro se in 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 May 27, 2015, findings and recommendations were entered, recommending that Plaintiff's motion for substitution and Defendants' motion to strike be denied, and that defendant Torres and Plaintiff's medical claim be dismissed from this action. (ECF No. 123.) On June 19, 2015, Plaintiff filed objections to the findings and recommendations. (ECF No. 127.)

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 Plaintiff's objections, 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 May 27, 2015, are ADOPTED IN FULL;

2. Plaintiff's motion for substitution, or in the alternative, for leave to serve process upon defendant Torres' legal representative, filed on November 20, 2014, is DENIED;

3. Defendants' motion to strike Plaintiff's motion for substitution, filed on December 11, 2014, is DENIED;

4. Defendant J. J. Torres is DISMISSED from this action, with prejudice;

5. Plaintiff's Eighth Amendment medical claim is DISMISSED from this action;

6. The Clerk is directed to reflect the dismissal of defendant Torres from this action on the court's record;

7. This case now proceeds only against defendants C/O Lockard, C/O Lopez, and C/O J. Hightower, for use of excessive force in violation of the Eighth Amendment; and

8. This case is referred back to the Magistrate Judge for further proceedings.

IT IS SO ORDERED.

Dated: July 7 , 2015

/s/ Lawrence J. O'Neill

UNITED STATES DISTRICT JUDGE