Davis v. Hedgpeth

Filing 46

ORDER Adopting Findings And Recommendations, Granting In Part And Denying In Part Defendant's Motion To Dismiss (Docs. 40 and 45 ), signed by Judge Oliver W. Wanger on 3/9/2010. (Scrivner, E)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 Plaintiff, 11 12 13 14 15 16 Plaintiff Dorian Davis a.k.a. Wali At-Taqi Davis is a state 17 prisoner proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. § 1983. 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. 20 § 636(b)(1)(B) and Local Rule 302. 21 On January 19, 2010, the Magistrate Judge filed a Findings and 22 Recommendations herein which was served on the parties and which 23 contained notice to the parties that any objections to the Findings 24 and Recommendations were to be filed within thirty days. 25 parties have not filed timely objections to the Findings and 26 Recommendations. 27 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), 28 1 The The matter was v. A. HEDGPETH, Defendant. / ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS (Docs. 40 and 45) DORIAN DAVIS a.k.a. WALI AT-TAQI DAVIS, CASE NO. 1:07-cv-00696-OWW-SMS PC

UNITED STATES DISTRICT COURT

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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 that: 1. The Findings and Recommendations, filed January 19, 2010, is adopted in full; 2. Defendant's motion to dismiss Plaintiff's Eighth

Amendment claim for failure to exhaust is DENIED; 3. Defendant's motion to dismiss Plaintiff's due process claim for failure to exhaust is GRANTED and the claim is dismissed from this action without prejudice; 4. Defendant's motion to dismiss Plaintiff's Eighth

Amendment claim for failure to state a claim is DENIED; 5. Defendant's motion to dismiss Plaintiff's Eighth

Amendment claim on qualified immunity grounds is DENIED; and 6. This matter is referred back to the Magistrate Judge for further proceedings. IT IS SO ORDERED. Dated: March 9, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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