Omara v. Smith et al

Filing 33

ORDER signed by District Judge Lawrence J. O'Neill on 1/24/2012 adopting 30 FINDINGS AND RECOMMENDATIONS and REMANDING CASE to Tuolumne County Superior Court. A Certified Copy of remand order sent to Tuolumne County Superior Court. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL A. OMARA,

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CASE NO. 1:11-CV-00812-LJO-DLB PC

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
(DOC. 30)

v.
STEVEN SMITH, et al.,
Defendants.

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ORDER REMANDING ACTION TO
TUOLUMNE COUNTY SUPERIOR COURT
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Plaintiff Michael A. Omara (“Plaintiff”) is a former California state prisoner proceeding pro

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se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against

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Defendants Steven Smith and Jack St. Clair for deliberate indifference to a serious medical need in

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violation of the Eighth Amendment, and state law claims. This action was removed from Tuolumne

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County Superior Court on May 18, 2011. On June 28, 2011, Defendants filed a motion to dismiss.

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Doc. 15. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302.

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On December 20, 2011, the Magistrate Judge filed a Findings and Recommendations which

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was served on the parties and which contained notice to the parties that any objection to the Findings

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and Recommendations was to be filed within twenty-one days. Doc. 30. No party filed a timely

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Objection to the Findings and Recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de

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novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and

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Recommendations to be supported by the record and by proper analysis.
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Plaintiff was provided the opportunity to amend his complaint to state a claim under 42

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U.S.C. § 1983. On December 29, 2011, Plaintiff filed a notice that he did not intend to amend, and

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wished to proceed only on the remaining state law claims once this action was remanded. Doc. 31.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, filed December 20, 2011, is adopted in full;

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2.

Defendants’ motion to dismiss, filed June 28, 2011, is GRANTED for Plaintiff’s

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failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983;

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2.

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Plaintiff’s Eighth Amendment claim and supervisory liability claim are dismissed for
failure to state a claim;

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3.

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Defendants’ motion to dismiss is DENIED as to exhaustion of administrative
remedies pursuant to 42 U.S.C. § 1997e(a);

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4.

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This action is REMANDED to the Tuolumne County Superior Court pursuant to 28
U.S.C. § 1447(c);

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5.

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The Clerk of the Court is directed to mail a certified copy of this order of remand to
the clerk of the Tuolumne County Superior Court; and

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6.

The Clerk of the Court is directed to administratively close this action.

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IT IS SO ORDERED.

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Dated:
b9ed48

January 24, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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