Hoffman v. Preston

Full title: MARCELLAS HOFFMAN, Plaintiff, v. TIMOTHY PRESTON, Defendant.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jun 12, 2019

Case No. 1:16-cv-01617-LJO-SAB (PC) (E.D. Cal. Jun. 12, 2019)

Opinion

Case No. 1:16-cv-01617-LJO-SAB (PC)

06-12-2019

MARCELLAS HOFFMAN, Plaintiff, v. TIMOTHY PRESTON, Defendant.

Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING RETALIATION CLAIM (ECF Nos. 42, 43)

Plaintiff Marcellas Hoffman is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On April 11, 2019, Plaintiff filed a first amended complaint against Defendant Timothy Preston. (ECF No. 42.) On April 25, 2019, the Magistrate Judge issued Findings and Recommendations recommending that this action proceed against Defendant Preston for violations of the Eighth Amendment. (ECF No. 43.) The Magistrate Judge further recommended that Plaintiff's First Amendment retaliation claim be dismissed for failure to state a cognizable claim for relief under Bivens. (Id.) The Findings and Recommendations were served on the parties and contained notice that any objections thereto were to be filed within thirty (30) days after service. (Id.) More than thirty days have passed since the Findings and Recommendations were served, and no objections have been filed.

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 that the Magistrate Judge's Findings and Recommendations are supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations issued on April 25, 2019, (ECF No. 43), are adopted in full;

2. This action shall proceed against Defendant Preston for violations of the Eighth Amendment;

3. Plaintiff's First Amendment retaliation claim is dismissed for failure to state a cognizable claim for relief under Bivens; and

4. This matter is referred to the assigned Magistrate Judge for further proceedings.

IT IS SO ORDERED.

Dated: June 12 , 2019

/s/ Lawrence J. O'Neill

UNITED STATES CHIEF DISTRICT JUDGE