Boyce v. Fox et al

Filing 44

ORDER signed by District Judge Kimberly J. Mueller on 3/6/17: 43 FINDINGS AND RECOMMENDATIONS are adopted in full and 38 MOTION to dismiss 38 is granted in part and denied in part. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNELL BOYCE,

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No. 2:14-cv-1743 KJM KJN P

Plaintiff,
v.

ORDER

MICHAEL FOX, et al.,
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 January 30, 2017, the magistrate judge filed findings and recommendations, 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. Neither party has filed

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objections to the findings and recommendations.

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The court presumes that any findings of fact are correct. See Orand v. United States, 602

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

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed

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the file, the court finds the findings and recommendations to be supported by the record and by

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the proper analysis.
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Accordingly, IT IS HEREBY ORDERED that the findings and recommendations filed

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January 30, 2017, are adopted in full and defendants’ motion to dismiss is granted in part and

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denied in part, as follows:

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1. Defendants’ motion to dismiss plaintiff’s claims as unexhausted is denied without
prejudice;
2. Plaintiff’s claims that defendants Fox and Does 1 - 5 failed to implement policies and

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procedures to warn him about, screen for, or protect plaintiff from Valley Fever upon his

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placement and housing at DVI in 2011 to 2012 are dismissed, and, in the alternative, defendants

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Fox and Does 1 - 5 are granted qualified immunity as to such claims;

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3. Defendant Kim is dismissed from this action based on plaintiff’s failure to include any
charging allegations against defendant Kim;

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4. Plaintiff’s claims against defendant Ogbodo are dismissed without prejudice; and

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5. Defendant Dr. Wong’s motion to dismiss is denied, and Dr. Wong is required to file an

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answer within fourteen days of the filed date of this order.

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DATED: March 6, 2017

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UNITED STATES DISTRICT JUDGE
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