Henry v. Cate et al

Filing 29

ORDER ADOPTING 27 FINDINGS AND RECOMMENDATIONS; ORDER DENYING 16 , 23 , 26 Motions; and ORDER REQUIRING Defendants Contreras and Jolley to Respond to Complaint Within Fifteen (15) Days signed by District Judge Lawrence J. O'Neill on 8/10/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KENNETH R. HENRY,

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Plaintiff,

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v.

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MATTHEW CATE, et al.,

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Case No. 1:14-cv-00791-LJO-SKO (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING
MOTIONS, AND REQUIRING
DEFENDANTS CONTRERAS AND
JOLLEY TO RESPOND TO COMPLAINT
WITHIN FIFTEEN DAYS

Defendants.
(Docs. 16, 23, 26, and 27)

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_____________________________________/
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Plaintiff Kenneth Henry (“Plaintiff”), a state prisoner proceeding pro se and in forma

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18 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 23, 2014. This action
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19 for damages is proceeding against Defendants Jolley, Contreras, and Ortega (“Defendants”) for

20 using excessive physical force against Plaintiff in 2013, in violation of the Eighth Amendment of
21 the United States Constitution.
The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

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23 636(b)(1)(B) and Local Rule 302. On July 13, 2015, the Magistrate Judge filed a Findings and
24 Recommendations recommending that Defendants’ motion to dismiss for failure to state a claim
25 be denied. Defendants did not file any objections, and Plaintiff filed a statement of non-opposition
26 on July 27, 2015. Local Rule 304(b).
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Identified as Jolly in the complaint.

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

2 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings
3 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.

The Findings and Recommendations, filed on July 13, 2015, is adopted in full;

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2.

Defendants’ motion to strike new allegations in Plaintiff’s opposition is DENIED;

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3.

Defendants’ motion to strike Plaintiff’s surreply is DENIED as moot;

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4.

Defendants’ motion to dismiss for failure to state a claim, filed on May 6, 2015, is

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DENIED; and
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Defendants Contreras and Jolley shall file a response to Plaintiff’s complaint within
fifteen (15) days from the date of service of this order.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

August 10, 2015

UNITED STATES DISTRICT JUDGE
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