Birrell, et al., v. Fox, et al.,

Filing 70

ORDER signed by Chief District Judge Kimberly J. Mueller on 1/17/23 ADOPTING in part and DECLINING in part 61 the findings and recommendations. Plaintiffs Moore, Alvarez, Lownes and Alford are DISMISSED. The court DECLINES to dismiss plaintiff Deegan. This matter, as it pertains to him, is REFERRED back to the magistrate judge. (Kastilahn, A)

Case 2:16-cv-01818-KJM-CKD Document 70 Filed 01/17/23 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID WESLEY BIRRELL, et al.,

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No. 2:16-cv-1818 KJM CKD P

Plaintiffs,

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v.

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ORDER

ROBERT W. FOX, et al.,

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Defendants.

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Plaintiffs, state prisoners proceeding pro se and individually, have filed this civil rights

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action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On August 4, 2022, the magistrate judge filed findings and recommendations,

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recommending that plaintiffs Deegan, Moore, Alvarez, Lownes and Alford be dismissed.1 ECF

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No. 61. The findings and recommendations were served on all parties and contained notice to all

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parties that any objections to the findings and recommendations were to be filed within fourteen

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days. Only plaintiff Deegan filed objections to the findings and recommendations.

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/////
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The magistrate also recommended that plaintiff Toussaint be dismissed. After the filing of that
recommendation, Toussaint voluntarily dismissed this action as it pertains to him. ECF No. 66.
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Case 2:16-cv-01818-KJM-CKD Document 70 Filed 01/17/23 Page 2 of 2
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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 reviewed the file, the court finds both

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sets of findings and recommendations to be supported by the record and by the proper analysis.

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Plaintiff Deegan has, however, made a showing sufficient to excuse his failure to timely file a

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status report. Accordingly, defendant Deegan will not be dismissed.

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IT IS HEREBY ORDERED that the court adopts in part and declines to adopt in part the
findings and recommendations filed August 4, 2022 (ECF No. 61), as follows:

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a. Plaintiffs Moore, Alvarez, Lownes and Alford are dismissed; and

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b. The court declines to dismiss plaintiff Deegan. This matter, as it pertains to him, is

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referred back to the magistrate judge.
DATED: January 17, 2023.

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