Rodgers v. Tilton et al

Filing 40

ORDER signed by Judge William B. Shubb on 1/25/10 ORDERING that the findings and recommendations filed 11/10/09, are adopted in full; and Dfts' 3/10/09 motion to dismiss 23 is granted in part and denied in part as follows: Dfts' motion to dismiss against dft Pettigrew is denied; Dfts' motion to dismiss pltf's complaint against dfts Moreno, Whitten, Wyant; and against dft Pettigrew, aside from his Eighth Amendment claim, is granted; Dfts Moreno, Whitten, and Wyant are dismissed from this action; and Dfts Athanassious and Pettigrew are directed to file an answer to pltfs complaint w/i 30 days. (Becknal, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. JAMES TILTON, et al., Defendants. / Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. On November 10, 2009, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. On December 2, 2009, plaintiff was granted an additional thirty days to file objections. The time period has now expired and neither party has filed objections to the findings and recommendations. ///// ///// 1 ORDER KEVIN RODGERS, Plaintiff, No. CIV S-07-2269 WBS DAD P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 full; and

The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge's analysis. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed November 10, 2009, are adopted in

2. Defendants' March 10, 2009 motion to dismiss (Doc. No. 23) is granted in part and denied in part as follows: a. Defendants' motion to dismiss plaintiff's complaint for failure to exhaust administrative remedies prior to filing suit as to his Eighth Amendment excessive use of force claim against defendant Pettigrew is denied; b. Defendants' motion to dismiss plaintiff's complaint for failure to exhaust administrative remedies prior to filing suit as to his constitutional claims against defendants Moreno, Whitten, and Wyant and any constitutional claims against defendant Pettigrew, aside from his Eighth Amendment excessive use of force claim, is granted; c. Defendants' motion to dismiss plaintiff's complaint for failure to state a claim for deliberate indifference under the Eighth Amendment against defendant Athanassious is denied; d. Defendants' motion to dismiss plaintiff's complaint for failure to state a claim for deliberate indifference under the Eighth Amendment against defendant Pettigrew is denied as unnecessary because such a claim is not presented by plaintiff; e. Defendants Moreno, Whitten, and Wyant are dismissed from this action; and f. Defendants Athanassious and Pettigrew are directed to file an answer to plaintiff's complaint within thirty days.

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

DATED: January 25, 2010

3