Lopez v. Schwarzenneger

Filing 93

ORDER adopting in full 75 FINDINGS AND RECOMMENDATIONS, signed by Judge Morrison C. England, Jr., on 9/14/11. Defendant Park's 42 motion to dismiss is DENIED. Defendants' 38 motion to dismiss by defendants Cate, Garcia, Berna, Cronja gar, Gomez and Florez; defendant Park's motion to dismiss 42 ; and defendants' 55 motion to dismiss brought by defendants McClure, Russ, Williams, Burt, Fischer and Buechner, are GRANTED as to claims two and six. Plaintiff is however, GR ANTED leave to amend. The aforementioned Defendants' motion to dismiss claim three is GRANTED and that claim is DISMISSED. Claim seven, construed as essentially subsumed within Claim four as it relates to the claims and defendants upon which this case is proceeding is DISMISSED as duplicative. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW RICK LOPEZ,

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No. 2:09-cv-01760 MCE GGH P

Plaintiff,

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vs.

ORDER

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ARNOLD SCHWARZENEGGER, et al.,

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Defendants.

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/

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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.

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On July 5, 2011, the magistrate judge filed findings and recommendations herein

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

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the findings and recommendations were to be filed within fourteen days. Plaintiff, who was

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granted an extension of time to do so, has filed objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local

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Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the

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entire file, the court finds the findings and recommendations to be supported by the record and by

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proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed July 5, 2011, are adopted in full;

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2. Defendant Park’s February 28, 2011 motion to dismiss (Docket No. 42) is

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denied on the ground that plaintiff’s action is barred by the statute of limitations;
3. Defendants’ February 22, 2011 motion to dismiss (Docket No. 38), by

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defendants Cate, Garcia, Berna, Cronjagar, Gomez and Florez; defendant Park’s February 28,

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2011 motion to dismiss (Docket No. 42); and defendants’ March 28, 2011 motion to dismiss

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(Docket No. 55), brought by defendants McClure, Russ, Williams, Burt, Fischer and Buechner,

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are granted as to claims two and six. Plaintiff will, however, be granted leave to amend solely to

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state how he has satisfied the pleading requirements of the California Government Claims Act

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with respect to those claims, citing the applicable facts and/or any circumstances precluding him

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from providing specific documentation of such compliance;

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4. The aforementioned Defendants’ motion to dismiss claim three is granted and
that claim is dismissed; and
5. Claim seven, construed as essentially subsumed within Claim four as it relates
to the claims and defendants upon which this case is proceeding is dismissed as duplicative.

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Dated: September 14, 2011
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MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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