Burgos v. Cate et al

Filing 51

ORDER signed by Chief Judge Morrison C. England, Jr. on 2/14/2013 ADOPTING 46 Findings and Recommendations in full; GRANTING, in part, 23 Motion to Dismiss; DISMISSING Plaintiff's claims relating to the denial of unlimited toilet flushes; DI SMISSING all Doe defendants; ORDERING that this action continue on Plaintiff's claims relating to the foam mattress and pillows against Defendants Capel, Clay and Haseltine; ORDERING Defendants Capel, Clay and Haseltine to file an Answer to the Plaintiff's 12 First Amended Prisoner Civil Rights Complaint within 14 days. (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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RICHARD MANUEL BURGOS,
Plaintiff,

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vs.

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No. 2:09-cv-03276-MCE-CMK-P

ORDER

MATTHEW L. CATE, et al.,
Defendants.

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

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to 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 December 17, 2012, the Magistrate Judge filed findings and recommendations

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herein (ECF No. 46) which were served on the parties and which contained notice that the

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parties may file objections within a specified time. Timely objections1 to the findings and

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recommendations have been filed.

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Plaintiff filed objections, but concedes in those objections that he failed to
exhaust his administrative remedies and agrees with the Magistrate Judge’s recommendation.
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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(f), 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

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by proper 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 December 17, 2012 (ECF No.

46) are ADOPTED IN FULL; and

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2.

Defendants’ motion to dismiss (ECF No. 23) is GRANTED IN PART;

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3.

Plaintiff’s claims relating to the denial of unlimited toilet flushes is

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dismissed, the Doe defendants are dismissed, and this action shall continue on Plaintiff’s claims

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relating to the foam mattress and pillows against Defendants Capel, Clay and Haseltine; and

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4.

Defendants Capel, Clay and Haseltine shall file an answer to Plaintiff’s

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First Amended Complaint within 14 days from the date this Order is electronically filed.

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DATED:

February 14, 2013

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__________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT JUDGE

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