Diaz v. Fox et al

Filing 41

ORDER adopting in full 38 FINDINGS AND RECOMMENDATIONS, signed by District Judge John A. Mendez on 8/31/16. Defendants' 28 motion to dismiss is DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIGUEL DIAZ,

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No. 2:14-cv-2705 JAM CKD P
Plaintiff,

v.

ORDER

R. 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 June 28, 2016, 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. Defendants have filed

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objections to the findings and recommendations.

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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. See Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (noting that, in embracing the

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physical injury standard under 42 U.S.C. § 1997(e) adopted by the Second, Fifth, and Eleventh

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circuits, the Ninth Circuit does not subscribe to the Fifth Circuit’s reasoning that Eighth
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Amendment claims require more than de minimis injury).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed June 28, 2016 are adopted in full;

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2. Defendants’ motion to dismiss (ECF No. 28) is denied.

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DATED: August 31, 2016

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John A. Mendez___________________________

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UNITED STATES DISTRICT COURT JUDGE

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