Opinion
1:22-cv-00780-AWI-BAM (PC)
03-28-2023
KORY T. O'BRIEN, Plaintiff, v. REED, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS (ECF NO. 21)
Plaintiff Kory T. O'Brien (“Plaintiff”') is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On December 30, 2022, the assigned Magistrate Judge issued findings and recommendations recommending that this action proceed on Plaintiff's second amended complaint, filed December 16, 2022, (ECF No. 20), against: (1) Defendants Recio, Talley, and Ly for tight handcuffs during the escort on July 2, 2021, in violation of the Eighth Amendment; (2) Defendants Reed, Recio, Talley, and Ly for denial of Plaintiff's cane during the escort, in violation of the Eighth Amendment; (3) Defendant Recio for retaliation in violation of the First Amendment; (4) Defendants Recio, Talley, and Ly for assault and battery for tight handcuffs during the escort on July 2, 2021; and (5) Defendant Reed for threatening and using intimidation to stop or persuade Plaintiff from future use of grievances in violation of California Civil Code section 52.1. (ECF No. 21.) The Magistrate Judge further recommended that all other claims be dismissed from this action based on Plaintiff's failure to state claims upon which relief may be granted. (Id.) The findings and recommendations were served on Plaintiff and contained notice that any objections were to be filed within fourteen (14) days after service. (Id. at 15-16.) No objections have been filed, and the deadline to do so has expired.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this 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.
Accordingly, IT IS HEREBY ORDERED as follows:
1. The findings and recommendations issued on December 30, 2022, (ECF No. 21), are adopted in full;
2. This action shall proceed on Plaintiff's second amended complaint, filed December 16, 2022, (ECF No. 20), against:
a. Defendants Recio, Talley, and Ly for tight handcuffs during the escort on July 2, 2021, in violation of the Eighth Amendment;
b. Defendants Reed, Recio, Talley, and Ly for denial of Plaintiff's cane during the escort, in violation of the Eighth Amendment;
c. Defendant Recio for retaliation in violation of the First Amendment
d. Defendants Recio, Talley, and Ly for assault and battery for tight handcuffs during the escort on July 2, 2021; and
e. Defendant Reed for threatening and using intimidation to stop or persuade Plaintiff from future use of grievances in violation of California Civil Code section 52.1.
3. All other claims are dismissed from this action for failure to state a claim upon which relief may be granted; and
4. This action is referred back to the Magistrate Judge for proceedings consistent with this order.
IT IS SO ORDERED.