Wheeler v. Alison et al

Filing 40

ORDER ADOPTING 37 FINDINGS AND RECOMMENDATIONS and ORDER GRANTING 29 Defendants' Motion to Dismiss Plaintiff's Claim for Damages Against Defendants in their Official Capacity signed by District Judge Lawrence J. O'Neill on 1/2/2014. Defendants are ORDERED to file a responsive pleading within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC WHEELER,
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Plaintiff,

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vs.

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KATHLEEN ALISON, et al.,
Defendants.

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1:12cv00861 LJO DLB PC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS’ MOTION TO DISMISS
(Document 37)

Plaintiff Eric Wheeler (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action. Plaintiff filed his complaint on May 25, 2012.
On August 22, 2013, Defendants Murrieta, Lowder, Loftis, Duck and Alison1 filed a

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Motion to Dismiss the claim for damages against Defendants in their official capacity pursuant to

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Federal Rule of Civil Procedure 12(b)(6). The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On November 21, 2013, the Court issued Findings and Recommendations that

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Defendants’ motion be granted. The Findings and Recommendations were served on the parties

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Defendants Ross, Mui and Ancheta have not yet been served. Defendant Neubarth requested an extension of time
to file an answer, which was granted on December 26, 2013.
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and contained notice that any objections were to be filed within thirty days. Neither party has
filed objections.

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

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a de novo review of this case. Having carefully reviewed the entire file, the Court finds that the

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Findings and Recommendations are supported by the record and proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendations, filed on November 21, 2013, are adopted;

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2.

Defendants’ Motion to Dismiss (Document 29) is GRANTED;

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Plaintiff’s claim for damages against Defendants in their official capacity is

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DISMISSED; and
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Defendants are ORDERED to file a responsive pleading within thirty (30) days of

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the date of service of this order.
IT IS SO ORDERED.

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Dated:
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/s/ Lawrence J. O’Neill

January 2, 2014

UNITED STATES DISTRICT JUDGE

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