Mack v. Ona et al

Filing 105

ORDER signed by Judge Morrison C. England, Jr on 1/26/09 ORDERING the findings and recommendations filed 11/21/08 are ADOPTED IN FULL; Dfts motion to dismiss 45 is GRANTED IN PART and DENIED IN PART; Dft Baroyas motion to dismiss 50 is DENIED; Dft Hynums motion to dismiss 53 is GRANTED; dft Centeno's motion to dismiss 70 for failure to state a claim and statute of limitations is DENIED; Dfts motions to dismiss on the grounds that plaintiffs claims are barred by the statute of limitat ions are GRANTED, without leave to amend, as to those claims arising prior to 10/24/01; Dfts Hollie, Krossa, Lucine, Parkinson, Thor, Ona, Parker and Hynum, referred to as the SVSP defendants, are DISMISSED from this action, and the Clerk of the Cour t is directed to terminate these individuals as dfts to this action; Dfts motions to dismiss on the grounds that plaintiffs claims are barred by the statute of limitations are DENIED as to those claims arising after 10/24/01; Dft Moor is DISMISSED fr om this action for pltfs failure to substitute pursuant to Rule 25(a)(1), and the Clerk of the Court is directed to terminate this individual as a defendant to this action; pltfs claim for injunctive relief is DISMISSED as barred by the statute of li mitations. This action shall proceed on pltf's Eighth Amendment violation claims, and any state law for medical malpractice he may have raised, against dfts Baroya, Baughma, hirsch, Kordan, O'Brien, Vo, Centeno, Turella, Latteri and Penner ONLY; and dfts Baroya, Baughman, Hirsch, Kordan, O'Brien, Vo, Centeno and Turella are directed to file an answer within 30 days. (Carlos, K)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ANTHONY E. MACK, Plaintiff, vs. MARSHA ONA, et al., Defendants. /

No. 2:05-cv-02134-MCE-CMK P

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules. On November 21, 2008, the Magistrate Judge filed findings and recommendations herein which were served on the parties and which contained notice that the parties may file objections within a specified time. Timely objections to the findings and recommendations have been filed.1 ///

Defendant C 1

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis. Accordingly, IT IS HEREBY ORDERED that: 1. 2. 3. 4. 5. The findings and recommendations filed November 21, 2008, are adopted in full; Defendants' motion to dismiss (Doc. 45) is granted in part and denied in part; Defendant Baroya's motion to dismiss (Doc. 50) is denied; Defendant Hynum's motion to dismiss (Doc. 53) is granted; Defendant Centeno's motion to dismiss (Doc. 70) for failure to state a claim and

statute of limitations is denied; 6. Defendants' motions to dismiss on the grounds that plaintiff's claims are barred

by the statute of limitations are granted, without leave to amend, as to those claims arising prior to October 24, 2001; 7. Defendants Hollie, Krossa, Lucine, Parkinson, Thor, Ona, Parker and Hynum,

referred to as the SVSP defendants, are dismissed from this action, and the Clerk of the Court is directed to terminate these individuals as defendants to this action; 8. Defendants' motions to dismiss on the grounds that plaintiff's claims are barred

by the statute of limitations are denied as to those claims arising after October 24, 2001; 9. Defendant Moor is dismissed from this action for plaintiff's failure to substitute

pursuant to Rule 25(a)(1), and the Clerk of the Court is directed to terminate this individual as a defendant to this action; 10. limitations; /// /// 2 Plaintiff's claim for injunctive relief is dismissed as barred by the statute of

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This action shall proceed on plaintiff's Eighth Amendment violation claims, and

any state law claim for medical malpractice he may have raised, against defendants Baroya, Baughman, Hirsch, Kordan, O'Brien, Vo, Centeno, Turella, Latteri and Penner only; and 12. Defendants Baroya, Baughman, Hirsch, Kordan, O'Brien, Vo, Centeno and

Turella are directed to file an answer within 20 days. Dated: January 26, 2009 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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