McMillan v. Pfile, et al.

Filing 44

ORDER adopting in full 41 FINDINGS AND RECOMMENDATIONS, signed by Chief Judge Morrison C. England, Jr., on 2/12/15. Defendants' 29 motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff is GRANTED leave to amend as to the si xth claim and ninth claim, but no further amendment will be permitted as to plaintiff's eighth claim against defendant Warden Swarthoutin his official capacity. Any amended complaint shall be filed not later than 30 days after the date this Order is electronically filed. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWIN MCMILLAN,

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Plaintiff,

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No. 2:13-cv-00578-MCE-KJN P

v.

ORDER

S. RINGLER, 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.

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On December 19, 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 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 December 19, 2014, are adopted in full.

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2. Defendants’ motion to dismiss (ECF No. 29) is granted as to plaintiff’s sixth claim

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against defendant Muldong, plaintiff’s eighth claim against defendant Warden Swarthout in his

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official capacity, and plaintiff’s ninth claim, under California Civil Code § 52.1, as to defendants

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Henry, Scotland, Ruiz, Muldong, Popovits, Arnold, Young, and Swarthout. In all other respects,

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defendants’ motion to dismiss is denied.

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3. Plaintiff is granted leave to amend as to the sixth claim and ninth claim, but no further
amendment will be permitted as to plaintiff’s eighth claim against defendant Warden Swarthout

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in his official capacity. Any amended complaint shall be filed not later than thirty (30) days after

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the date this Order is electronically filed.

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Dated: February 12, 2015

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