Mitchell v. Cate et al

Filing 49

ORDER signed by Judge John A. Mendez on 4/12/2013 ORDERING that the 48 Findings and Recommendations are ADOPTED IN FULL. Defendant Miranda's 29 motion to dismiss under Rule 12(b)(6) is GRANTED without prejudice to amendment and plaintiff i s GRANTED twenty-eight days to file an amended complaint. Defendants' 30 motion to dismiss for failure to exhaust administrative remedies is GRANTED as to the claim that plaintiff's Eighth Amendment rights were violated by exposure to extreme cold without adequate clothing and/or linens (ECF No. 1 at 20, 152), and DENIED as to all other claims. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY MITCHELL,

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Plaintiff,

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vs.
MATTHEW L. CATE, et al.,
Defendants.

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No. 2:11-cv-1240 JAM AC P

ORDER
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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 February 20, 2013, the magistrate judge filed findings and recommendations

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

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findings and recommendations were to be filed within fourteen (14) days. Neither party has

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filed objections to the findings and recommendations.

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The court has reviewed the file and finds the findings and recommendations to be

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supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY

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ORDERED that:
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1. The findings and recommendations filed February 20, 2013, are adopted in
full;

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2. Defendant Miranda’s motion to dismiss under Rule 12(b)(6) (ECF No. 29) is

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granted without prejudice to amendment and plaintiff is granted twenty-eight days to file an

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amended complaint.

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3. Defendants’ motion to dismiss for failure to exhaust administrative remedies

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(ECF No. 30) is granted as to the claim that plaintiff’s Eighth Amendment rights were violated

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by exposure to extreme cold without adequate clothing and/or linens (ECF No. 1 at 20, ¶ 152),

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and denied as to all other claims.

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DATED:

April 12, 2013
/s/ John A. Mendez
UNITED STATES DISTRICT COURT JUDGE

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