Witkin v. Swarthout et al

Filing 29

ORDER signed by Judge Garland E. Burrell, Jr on 3/5/15 ADOPTING IN FULL 27 Findings and Recommendations; GRANTING IN PART AND DENYING IN PART 18 Motion to Dismiss. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL WITKIN,

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Plaintiff,

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No. 2:13-cv-1931 GEB KJN P

v.

ORDER

G. SWARTHOUT, 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 February 4, 2015, 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 February 4, 2015, are adopted in full;

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2. Defendants’ motion to dismiss (ECF No. 18) is granted in part, and denied in part, as

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set forth below:
a. Plaintiff’s First Amendment retaliation claims against defendants Swarthout

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and Popovits in connection with plaintiff’s outdoor exercise claim, as well as his Eighth

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Amendment claims against defendants Young and Popovits, is dismissed with prejudice.

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b. The following claims are dismissed without prejudice to plaintiff renewing such
claims in a second amended complaint:
1. Plaintiff’s retaliation claim against defendant Sanchez in connection
with the rules violation imposed on March 8, 2013;
2. Plaintiff’s retaliation claim against defendant Popovits based on the
April 17, 2013 bunk area search;
3. Plaintiff’s retaliation claim against defendant Wilkinson based on the
March 21, 2013 search; and

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4. Plaintiff’s Eighth Amendment claim as to defendant Swarthout.

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c. Plaintiff is granted leave to file a second amended complaint within thirty days

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of the date of this order.

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Dated: March 5, 2015

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