John Doe Smith v. Mims et al

Filing 30

ORDER ADOPTING 29 Findings and Recommendations, GRANTING In Part 24 Motion to Dismiss, and DENYING Motion to Strike, signed by District Judge Dale A. Drozd on 6/27/17. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL TREBAS, 12 Plaintiff, 13 14 No. 1:16-cv-00461-DAD-EPG v. MARGARET MIMS, et al., 15 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING IN PART MOTION TO DISMISS, AND DENYING MOTION TO STRIKE Defendants. (Doc. Nos. 24, 29) 16 Plaintiff Daniel Trebas is a state prisoner represented in this action by counsel, alleging 17 18 claims pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) The case was removed from Alameda 19 County Superior Court on January 29, 2016. (Id.) On January 9, 2017, the assigned magistrate 20 judge issued findings and recommendations recommending that defendants’ motion to dismiss be 21 granted in part and denied in part. (Doc. No. 29.) The findings and recommendations were 22 served on all parties with instructions that any objections thereto must be filed within twenty 23 days. No objections have been filed, and the time in which to do so has passed. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 24 25 conducted a de novo review of the case. Having carefully reviewed the entire file, the 26 undersigned concludes the findings and recommendations are supported by the record and proper 27 analysis. 28 ///// 1 1 Given the above: 2 1. The January 9, 2017 findings and recommendations (Doc. No. 29) are adopted in full; 3 2. Defendant’s motion to dismiss, filed on October 18, 2016 (Doc. No. 24), is granted in 4 5 part and denied in part; 3. Plaintiff’s first amended complaint (Doc. No. 22) shall proceed on the following 6 claims: (1) against defendants Orr and Thomas for professional negligence under California 7 common law; (2) against defendants Orr, Thomas and Moreno for deliberate indifference to 8 serious medical needs in violation of the Fourteenth Amendment; and, (3) against defendant 9 Thomas for violation of the Elder Abuse and Dependent Adult Civil Protection Act; 10 4. All other named defendants and causes of action are dismissed. Specifically, 11 defendants Corizon Healthcare, Sheriff Margaret Mims, Fresno County Sheriff’s Department, and 12 Does 1–50 are dismissed from this action; and, 13 14 15 5. Defendants’ motion to strike, filed on October 18, 2016 (Doc. No. 24), is denied. IT IS SO ORDERED. Dated: June 27, 2017 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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