Royal v. Knight et al

Filing 36

ORDER signed by Magistrate Judge Barbara A. McAuliffe on 4/3/2012 granting in part and denying in part 23 Motion to Dismiss and dismissing certain claims and defendants for failure to exhaust administrative remedies. Defendants' Gardner and K. Turner dismissed from case. Defendants' responsive pleading due by 5/4/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MARLIN LATTEREAL ROYAL,

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CASE NO. 1:09-cv-01407-BAM PC

Plaintiff,

ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION TO
DISMISS AND DISMISSING CERTAIN
CLAIMS AND DEFENDANTS FOR FAILURE
TO EXHAUST ADMINISTRATIVE REMEDIES

Defendants.

(ECF No. 33)

v.
S. KNIGHT, et al.,

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THIRTY DAY DEADLINE
/

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Plaintiff Marlin Lattereal Royal (“Plaintiff”), 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, filed this action on August 12, 2009.

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On September 3, 2009, Plaintiff consented to the jurisdiction of the Magistrate Judge. (ECF No. 5.)

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This action is proceeding on the First Amended Complaint, filed August 19, 2010. (ECF No. 15.

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Defendants filed a Motion to Dismiss on December 1, 2011. (ECF No. 23.) On February 29, 2012,

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Findings and Recommendations issued recommending granting in part and denying in part

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Defendants’ Motion to Dismiss. (ECF No. 33.) On March 8, 2012, Defendants consented to the

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Jurisdiction of the Magistrate Judge. (ECF No. 34.) On April 3, 2012, this action was reasssigned

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to the undersigned. Accordingly, the Findings and Recommendations, issued February 29, 2012,

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shall become the order of this Court.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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The Findings and Recommendations, issued February 29, 2012, is the order of this
Court;
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2.

Defendants’ Motion to Dismiss, filed December 1, 2011, is GRANTED IN PART

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and DENIED IN PART as follows:

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a.

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Plaintiff’s claims against Defendants Turner and Gardner are DISMISSED,
without prejudice, for failure to exhaust administrative remedies;

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b.

Plaintiff’s excessive force and deliberate indifference claims against

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Defendant Knight based upon the incident in the standup cage are

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DISMISSED, without prejudice, for failure to exhaust administrative

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remedies;

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c.

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Defendants’ Motion to Dismiss Plaintiff’s failure to protect claims against
Defendant Clark is DENIED;

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d.

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Defendants’ Motion to Dismiss Plaintiff’s retaliation claim against Defendant
Knight is DENIED;

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3.

Defendants Turner and Gardner are DISMISSED from this action;

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4.

This action shall proceed on the First Amended Complaint against Defendant Knight

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for excessive force in violation of the Eighth Amendment and retaliation in violation

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of the First Amendment, and Defendant Clark for failure to protect in violation of the

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Eighth Amendment; and

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5.

Defendants shall file a responsive pleading within thirty days from the date of service

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of this order.

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IT IS SO ORDERED.

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Dated:
10c20k

April 3, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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