Braley v. Wasco State Prison, et al

Filing 63

ORDER ADOPTING 61 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants, signed by Senior Judge Oliver W. Wanger on 9/30/2011. M. Hunter, Martinez, Massa, Thompson, Wasco State Prison, Williams, C. Cooper and George terminated. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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THOMAS D. BRALEY,

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CASE NO. 1:07-cv-01423-OWW-SMS

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATION AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS

v.

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WASCO STATE PRISON, et al.,

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(ECF No. 61, 62)

Defendants.
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Plaintiff Thomas D. Braley (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 24, 2011, the Magistrate Judge issued findings and recommendations

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recommending dismissal of certain claims and defendants. Plaintiff was given thirty days to file

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objections and objections were filed on September 27, 2011. In Plaintiff’s objections he complains

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that the findings and recommendations misstated the date of the x-ray that he received after he was

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injured. A review of the second amended complaint shows that Plaintiff stated that he was x-rayed

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on September 20, 2007, however his objection states the x-ray occurred on September 21, 2007. The

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difference of one day in receiving the x-ray would not change the findings that Plaintiff failed to state

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a cognizable claim for deliberate indifference to his medical needs.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has

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conducted a de novo review of this case. Having carefully reviewed the entire file, the undersigned

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finds the findings and recommendations to be supported by the record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The findings and recommendations recommending, filed August 24, 2011, is adopted
in full;

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This action is proceeding on the second amended complaint, filed June 10, 2011,

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against Defendants Markmann and L.A. Miller for failure to protect in violation of

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the Eighth Amendment;

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3.

Defendants Williams, Martinez, Massa, George, Thompson, Wasco State Prison, C.

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Cooper, and M. Hunter are dismissed from this action, with prejudice, based upon

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Plaintiff’s failure to state a cognizable claim against them;

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4.

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Plaintiff’s remaining Eighth Amendment claims and claim for injunctive relief are
dismissed, with prejudice, for Plaintiff’s failure to state a claim; and

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

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IT IS SO ORDERED.

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Dated:
September 30, 2011
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/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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