Smith v. Aubuchon, et al.

Filing 55

ORDER signed by District Judge Kimberly J. Mueller on 3/21/2017 ADOPTING IN FULL 43 Findings and Recommendations; GRANTING 28 Motion to Dismiss; DISMISSING the 16 First Amended Prisoner Civil Rights Complaint with leave to amend; ORDERING the plaintiff to file a Second Amended Prisoner Civil Rights Complaint within 30 days. (Michel, G.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM GRANVILLE SMITH,

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Plaintiff,

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No. 2:14-cv-0775-KJM-CMK-P

v.

ORDER

B. AUBUCHON, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42

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U.S.C. § 1983. The matter was referred to a United States Magistrate Judge in accordance with

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Eastern District of California local rules.
On September 8, 2016, the Magistrate Judge filed findings and recommendations,

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which were served on the parties and which contained notice that the parties may file objections

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within fourteen days. Plaintiff sought and received two thirty day extensions of time to file

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objections. See ECF Nos. 47, 52. Plaintiff’s third request for extension of time was denied. See

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ECF No. 54. Neither party has filed objections to the findings and recommendations.
The court presumes that any findings of fact are correct. See Orand v. United

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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

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1983). Having reviewed the file, the court finds the findings and recommendations to be

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supported by the record and by the proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The findings and recommendations filed September 8, 2016, are adopted in

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Defendants’ motion to dismiss (ECF No. 28) is granted;

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3.

Plaintiff’s first amended complaint is dismissed with leave to amend; and

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4.

Plaintiff shall file and serve a second amended complaint within 30 days of

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full;

the date of this order.
DATED: March 21, 2017

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UNITED STATES DISTRICT JUDGE

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