Manning, et al., v. CDCR, et al.,

Filing 71

ORDER signed by Chief Judge Morrison C. England, Jr. on 8/5/2013 ADOPTING, in full, 63 Findings and Recommendations; GRANTING 19 , 25 , 45 Motions to Dismiss; DISMISSING, with prejudice, Count One alleging violation of the Eighth Amendment and pendent state law claims based on the Valley Fever allegations and the related prayer for injunctive relief; DISMISSING, with prejudice, Counts Three and Four alleging negligence; DISMISSING, with prejudice, Claim Five alleging tortious interference with contract and/or interference with prospective business advantage; DISMISSING, with prejudice, Plaintiff's prayer for injunctive relief in the form of an order preventing his transfer; DISMISSING, without prejudice, WITH LEAVE TO AMEND Claim Two premised on violations of the First Amendment, retaliation for the exercise of First Amendment rights, and related conspiracy; ORDERING the plaintiff to file an Amended Complaint within 28 days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHERMAN MANNING and
PETER ANDRIST,
Plaintiff,

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No. 2:12-cv-2440 MCE AC P

ORDER
v.
M. BUNNELL, et al.,
Defendants.

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Plaintiffs, a state prisoner and his publisher, are proceeding with counsel in a civil rights

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action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 24, 2013, the magistrate judge filed findings and recommendations herein which

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

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findings and recommendations were to be filed within fourteen days. Plaintiffs were granted an

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extension of time (ECF No. 66) to file objections to the findings and recommendations and have

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done so. Defendants Humphries, Johnson, Ralls and Wenker filed a reply to the objections.

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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 file, the

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

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed May 24, 2013, are adopted in full; and

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2. The motions to dismiss, (ECF Nos. 19, 25, and 45), are GRANTED as follows:

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A. Claim One, alleging violation of the Eighth Amendment and pendent state law

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claims based on the Valley Fever allegations, and the related prayer for injunctive

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relief regarding medical care for Valley Fever, is dismissed with prejudice;

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B. Claims Three and Four, alleging negligence, are dismissed with prejudice;

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C. Claim Five, alleging tortious interference with contract and/or interference with

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prospective business advantage, is dismissed with prejudice;
D. Plaintiffs’ prayer for injunctive relief in the form of an order preventing his
transfer is dismissed with prejudice;
E. Claim Two is dismissed without prejudice, and plaintiffs are granted leave to

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amend their claim(s) premised on violations of the First Amendment, retaliation

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for the exercise of First Amendment rights, and related conspiracy; and

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F. Plaintiffs must file any second amended complaint within twenty-eight days of the
date this order is filed.

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Date: August 05, 2013

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_____________________________________
___________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT COURT

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