Reece v. Sisto et al

Filing 49

ORDER adopting in full 47 FINDINGS AND RECOMMENDATIONS, signed by Judge John A. Mendez on 11/14/14. Defendants' 22 motion to dismiss is granted in that plaintiff's Eighth Amendment claim is dismissed with leave to amend, and that claims based on conditions existing before January 2006 are dismissed without leave to amend, as barred by the statute of limitations. Plaintiff is granted leave to file an amended complaint within 30 days of the filing date of this order. If plaintiff chooses not to file an amended complaint and instead, to proceed solely on his Fourteenth Amendment claim, then defendants are required to file an answer within 45 days of the filing date of this order. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES G. REECE,

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Plaintiff,

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No. 2:10-cv-0203-JAM-EFB P

v.

ORDER

D.K. SISTO, et al.,

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Defendants.

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

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

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On August 14, 2014, 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 has filed

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objections to the findings and recommendations.
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

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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 August 14, 2014, are adopted in full; and

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2. Defendants’ motion to dismiss (ECF No. 22) is granted in that plaintiff’s Eighth

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Amendment claim is dismissed with leave to amend, and that claims based on

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conditions existing before January 2006 are dismissed without leave to amend, as

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barred by the statute of limitations;

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3. Plaintiff is granted leave to file an amended complaint to cure the deficiencies in his
Eighth Amendment claim, within thirty days of the filing date of this order; and
4. If plaintiff chooses not to file an amended complaint and instead, to proceed solely on

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his Fourteenth Amendment claim, then defendants are required to file an answer within

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45 days of the filing date of this order.

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DATED: November 14, 2014

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/s/ John A. Mendez_______________________

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UNITED STATES DISTRICT COURT JUDGE

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