Nailing v. Fosterer et al

Filing 82

ORDER signed by Judge Morrison C. England, Jr on 3/29/2012 ORDERING 78 FINDINGS AND RECOMMENDATIONS are ADOPTED in full; 63 Motion to Strike is GRANTED; 62 Sur-Reply is STRICKEN; 29 Motion to Dismiss and 67 Motion to Dismiss are GRANTED; [4 5] Motion to Dismiss is GRANTED IN PART and DENIED IN PART; defendants C. Lewis, I.M. Lucas, Torruella, Bemrick and Cardeno are DISMISSED; 70 Motion for Summary Judgment is DENIED as MOOT; this action proceeds on the first amended complaint against defendants Forsterer, Coughlin, Holman, Brown, Stotz, Pruitt and Vasquez, who shall file an answer to the amended complaint within 30 days of the date of this order. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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XAVIER DMETRI NAILING,

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Plaintiff,
vs.

ORDER

B.D. FOSTERER, et al.,

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Defendants.

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No. 2:09-cv-02475-MCE-CMK

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Plaintiff, a former prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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Eastern District of California local rules.

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On March 2, 2012, the Magistrate Judge filed findings and recommendations herein

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which were served on the parties and which contained notice that the parties may file objections

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within a specified time. No objections to the findings and recommendations have been filed.

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

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analysis.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The findings and recommendations filed March 2, 2012 (ECF No. 78), are

ADOPTED in full;

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2.

Defendants’ motion to strike (ECF No. 63) is GRANTED;

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3.

Plaintiff’s sur-reply filed on October 7, 2011 (ECF No. 62), is stricken;

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4.

Defendant Bemrick’s motion to dismiss (ECF Nos. 29 & 67) is GRANTED;

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5.

The remaining defendants’ motion to dismiss (ECF No. 45) is GRANTED in part

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and DENIED in part;

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6.

Defendants Bemrick, Torruella, Cardeno, Lewis, and Lucas are DISMISSED;

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7.

Defendant Bemrick’s motion for summary judgment (ECF No. 70) is DENIED as

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moot; and

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8.

This action proceeds on the first amended complaint as against defendants

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Forsterer, Coughlin, Holman, Brown, Stotz, Pruitt, and Vasquez, who shall file an answer to the

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amended complaint within 30 days of the date of this order.

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Dated: March 29, 2012
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MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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