Asberry v. Cate et al

Filing 53

ORDER signed by Judge Morrison C. England, Jr. on 3/28/2012 ADOPTING 52 Findings and Recommendations in full; GRANTING 30 Motion to Dismiss as to Plaintiff's 8th Amendment Claim against Defendant Phelps, Defendants shall file an Answer within 21 days; DENYING Pliantiff's Second 32 Motion for Preliminary Injunction. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,
Plaintiff,

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No. 2:09-cv-1494-MCE-KJN-P

vs.

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MATTHEW CATE, et al.,

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Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 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.
On January 27, 2012, the magistrate judge filed findings and recommendations

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herein which were served on all parties and which contained notice to all parties that any

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objections to the findings and recommendations were to be filed within twenty-one days. Neither

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party has filed objections to the findings and recommendations.
The Court has reviewed the file and finds the findings and recommendations to be

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supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY

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ORDERED that:

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1. The findings and recommendations filed January 27, 2012 (ECF No. 52), are
ADOPTED in full.

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2. Defendants’ motion to dismiss plaintiff’s Eighth Amendment claim against
defendant Phelps (ECF No. 30) is GRANTED;

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3. This action shall proceed on plaintiff’s substantive due process and equal

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protection claims against defendant Phelps, and plaintiff’s due process claim against defendant

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Hernandez;

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4. Defendants shall file an answer within 21 days from the date of this order on
plaintiff’s remaining claims; and

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5. Plaintiff’s second motion for a preliminary injunction (EDF No. 32) is
DENIED.
Dated: March 28, 2012

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________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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