(PC) Lamon v. Mey

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA BARRY LOUIS LAMON, No. 2:20-cv-01474-TLN-KJN 12 Plaintiff, 13 v. ORDER S. MEY, et al., 15 Defendants.

17 Plaintiff Barry Louis Lamon (“Plaintiff”), a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 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.

20 On October 1, 2020, the magistrate judge filed two sets of findings and recommendations herein which were served on Plaintiff and which contained notice to Plaintiff that any objections to the findings and recommendations were to be filed within fourteen (14) days. (ECF Nos. 14, 15.) On October 15, 2020, Plaintiff filed Objections to both sets of findings and recommendations.1 (ECF No. 20.)

25 1 The magistrate judge also issued an Order directing service of the First Amended Complaint on the Defendants against whom the screening order found “potentially colorable claims” had been asserted. (ECF No. 16.) In his Objections to Findings and Recommendations, Plaintiff additionally objects to this order. (ECF No. 20 at 1.) Plaintiff appears to argue that, in only ordering service on certain Defendants identified in the screening order and not all of the Defendants identified in the First Amended Complaint, the magistrate judge is circumventing the 1 The Court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed findings of fact to which no objection has been made, the Court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

9 Having carefully reviewed the entire file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge’s analysis.

12 Plaintiff’s objection that the magistrate judge failed to accurately or carefully screen his First Amended Complaint is not well-taken. To the contrary, the 13-page Findings and Recommendations provided a detailed and appropriate analysis of Plaintiff’s allegations and found multiple potentially cognizable claims. (See generally ECF No. 14.) Plaintiff’s remaining claims are properly dismissed because they are based upon conclusory allegations which fail to meet the threshold requirement of “giv[ing] the defendant fair notice of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).

19 Accordingly, Plaintiff’s objections are overruled.

20 As to the recommendation to deny Plaintiff’s Motion for Preliminary Injunction (ECF No. 15), Plaintiff’s objections are again unavailing. The Findings and Recommendations District Judge’s de novo review of Plaintiff’s claims pursuant to 28 U.S.C. § 636 and improperly precluding Plaintiff from litigating claims which he contends are cognizable. (See ECF No. 20 at 1, 9–10.) Plaintiff’s argument appears to be premised upon a misapprehension of the law and is without merit. Had the Court declined to adopt any part of the Findings and Recommendations, Plaintiff would be permitted to proceed on any additional claims deemed potentially cognizable by the Court. Such is not the case here, however, as the Court has determined the Findings and Recommendations to be fully supported by the magistrate judge’s analysis and adopts them in full. Accordingly, these objections are moot as well as unfounded. Further, to the extent these objections merely duplicate Plaintiff’s objections to the findings and recommendations to dismiss certain claims (ECF No. 14), they are overruled for the reasons discussed herein.

1 appropriately characterize and recommend denial of Plaintiff’s request for injunctive relief where it is sought against individuals who are not parties to this action or pertains to potential safety concerns that are no longer applicable because Plaintiff has transferred prison locations. (See ECF No. 13.) Accordingly, these objections are overruled.

5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Findings and Recommendations filed October 1, 2020 (ECF Nos. 14, 15), are adopted in full; 8 2. Plaintiff’s August 27, 2020 Motion for a Preliminary Injunction (ECF No. 13) is DENIED; and 10 3. This action shall proceed on Plaintiff’s First Amended Complaint (ECF No. 12) only with respect to the claims that were expressly identified by the Findings and Recommendations to be potentially colorable (see ECF No. 14 at 12). All remaining claims are DISMISSED.

13 IT IS SO ORDERED.

14 DATED: November 6, 2020