Mitchell v. Schwartzenegger et al

Filing 66

ORDER ADOPTING 59 FINDINGS AND RECOMMENDATIONS signed by Judge John A. Mendez on 4/10/13 GRANTING D Easterling's 54 Motion to Dismiss; Plaintiff's excessive force claim is DISMISSED without prejudice; GRANTING J. Haviland, V. Singh, G . Bickham and R. Cappel's Motion to Dismiss; Plaintiff's retaliation claims are DISMISSED with prejudice; Defendant McGuire's motion to dismiss plaintiff's retaliation claims is DENIED; Defendant Rosario is directed to file an answer to the excessive force claims, and Defendants Rosario, Garcia and McGuire are directed to file an answer to the First Amendmennt retaliation claims within 14 days. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN EDWARD MITCHELL,

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Plaintiff,
vs.
J. HAVILAND, et al.,
Defendants.

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No. 2:09-cv-3012 JAM KJN P

ORDER
/

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 February 5, 2013, 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 fourteen days. Plaintiff

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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 Rule

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

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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 February 5, 2013, are adopted in full;

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2. Defendant Easterling’s motion to dismiss (dkt. no. 54) is granted, and

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plaintiff’s excessive force claim is dismissed without prejudice;

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3. The motion to dismiss (dkt. no. 54) filed by defendants Bickham, Cappel,
Singh, and Haviland is granted, and plaintiff’s retaliation claims are dismissed with prejudice;

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4. Defendant McGuire’s motion to dismiss plaintiff’s retaliation claims is denied;
and

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5. Within fourteen days from service of this order, defendant Rosario is directed

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to file an answer to plaintiff’s excessive force claims, and defendants Rosario, Garcia, and

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McGuire are directed to file an answer to plaintiff’s First Amendment retaliation claims.

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DATED:

April 10, 2013

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/s/ John A. Mendez
UNITED STATES DISTRICT COURT JUDGE

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