Mitchell v. Davey, et al.
Filing
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ORDER Adopting 86 91 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants signed by District Judge Dale A. Drozd on 12/17/2018. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHN E. MITCHELL,
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No. 1:16-cv-01148-DAD-EPG
Plaintiff,
v.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
D. DAVEY, et al.,
Defendants.
(Doc. Nos. 86, 88, 91)
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Plaintiff John Mitchell is a state prisoner proceeding pro se in this civil rights action
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brought pursuant to 42 U.S.C. § 1983. 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.
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On October 2, 2018, the assigned magistrate judge issued findings and recommendations,
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recommending that all claims and defendants be dismissed, save and except for plaintiff’s claim
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against defendants Thompson and Robicheaux for violation of plaintiff’s free exercise rights
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under the First Amendment. (Doc. No. 86 at 8.)
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On October 16, 2018, defendant Thompson filed a motion to dismiss contending that on
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the face of plaintiff’s complaint, plaintiff failed to exhaust his available administrative remedies
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prior to filing suit as to his claim against defendant Thompson. (Doc. No. 88.) On November 2,
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2018, plaintiff filed a response, conceding that he failed to exhaust his claim against defendant
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Thompson. (Doc. No. 90 at 1.) Accordingly, on November 6, 2018, the assigned magistrate
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judge issued findings and recommendations, recommending that defendant Thompson’s motion
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to dismiss be granted and that defendant Thompson be dismissed from this case. (Doc No. 91.)
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As to each of the findings and recommendations, the parties were provided an opportunity to file
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objections. To date, no objections have been filed, and the time in which to do so has now
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passed.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this
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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
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court finds the findings and recommendations to be supported by the record and proper analysis.
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Accordingly,
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1.
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The findings and recommendations issued on October 2, 2018 (Doc. No. 86) are
adopted in full;
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The findings and recommendations issued on November 6, 2018 (Doc. No. 91) are
adopted in full;
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3.
Defendant Thompson’s motion to dismiss (Doc. No. 88) is granted;
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4.
All claims and defendants are dismissed, save and except for plaintiff’s claim
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against defendant Robicheaux for violation of plaintiff’s free exercise rights under
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the First Amendment;
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5.
CRM M.S. Robicheaux on the court’s docket; and
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The Clerk of Court is directed to reflect the dismissal of all defendants except
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This case is referred back to the magistrate judge for further proceedings.
IT IS SO ORDERED.
Dated:
December 17, 2018
UNITED STATES DISTRICT JUDGE
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