Chappell v. Fleming et al

Filing 73

ORDER ADOPTING 70 FINDINGS AND RECOMMENDATIONS signed by Chief Judge Morrison C. England, Jr on 3/25/14 GRANTING Defendant Murphy's 51 Motion to Dismiss, DENYING as moot Defendant Murphy's 54 Motion to Dismiss and GRANTING in part and DENYING in part the remaining Defendants' 42 Motion to Dismiss. Defendants Fleming, Brackett, W. Harrison, Amero, Perez, J. Harrison and Marquez are ORDERED to file an answer to the remaining claims within 30 days. (Manzer, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

REX CHAPPELL,

12

Plaintiff,

13
14

No. 2:12-cv-0234 MCE AC P

v.

ORDER

OFFICER FLEMING, et al.,

15

Defendants.

16
17

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

18

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

19

28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 26, 2014, the magistrate judge filed findings and recommendations herein

20
21

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

22

the findings and recommendations were to be filed within twenty-one days. Both plaintiff and

23

defendants have filed objections to the findings and recommendations. ECF Nos. 71, 72.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

24
25

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

26

court finds the findings and recommendations to be supported by the record and by proper

27

analysis.

28

/////
1

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. The findings and recommendations filed February 26, 2014, are adopted in full; and

3

2. Defendant Murphy’s motion to dismiss (ECF No. 51) is granted for failing to state an

4

Eighth Amendment or a retaliation/conspiracy claim upon which relief can be granted;

5
6

3. Defendant Murphy’s motion to dismiss for failing to exhaust administrative remedies
(ECF No. 54) is denied as moot;

7
8

4. The remaining defendants’ motion to dismiss (ECF No. 42) is granted in part and the
following claims are dismissed:

9

a. Plaintiff’s First Amendment retaliation claim against Defendant Fleming based

10

on the allegation that Fleming validated plaintiff as a gang member because of plaintiff’s use of

11

derogatory language;

12
13

b. Plaintiff’s Eighth Amendment claim as to Defendants Fleming, Brackett, W.
Harrison, Audette, Perez and St. Andre;

14
15

c. Plaintiff’s procedural due process claim against Defendants Cates, McDonald
Perez, J. Harrison, and Marquez;

16
17

d. Plaintiff’s substantive due process claim against Defendants Cates, McDonald,
and Perez;

18
19

e. Plaintiff’s First Amendment retaliation claim against Defendants Cates and
McDonald; and

20

f. Plaintiff’s conspiracy claims as to all remaining defendants;

21
22

5. The defendants’ motion to dismiss (ECF No. 42) is denied in part as to the following
claims only:

23
24

a. Plaintiff’s First Amendment retaliation claim against Defendants Fleming,
Brackett, W. Harrison, Amero, and Perez;

25

b. Plaintiff’s substantive due process claim against Defendants J. Harrison and

26

Marquez; and

27

///

28

///
2

1

6. Defendants Fleming, Brackett, W. Harrison, Amero, Perez, J. Harrison, and Marquez

2

are ordered to file an answer to the claims identified in the previous paragraph within thirty days

3

of this order.

4

Dated: March 25, 2014

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3