Schiro v. Clark et al

Filing 61

ORDERED the Magistrate Judge's # 54 Report and Recommendation is adopted and accepted. FURTHER ORD that Ds' # 35 Partial Motion to Dismiss P's four claims as set forth in Count I are GRANTED IN PART and DENIED IN PART as follows: 1. P's Eighth Amendment claims against Ds Hegge and Chacon are barred by the statute of limitations and DISMISSED WITH PREJUDICE; 2. P's 14th Amendment claim against D Jimenez is barred by the statute of limitations and DISMISSED WITH PREJUDICE; 3. Ds' Motion to Dismiss P's 1st Amendment claim against D Herrera is DENIED because Ds have not proven that P failed to exhaust his administrative remedies. FURTHER ORD that Ds' # 46 Motion to Strike is GRANTED. Signed by Chief Judge Robert C. Jones on 1/31/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KENNETH SCHIRO,

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Plaintiff,
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v.
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STEPHEN CLARK, et al.,
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Defendants.
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_______________________________________ )

3:10-CV-00203-RCJ(VPC)
ORDER

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Before the Court is the Report and Recommendation of the United States Magistrate Judge (#54)

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(“Recommendation”) entered December 8, 2011, in which the Magistrate Judge recommends that this

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Court grant in part and deny in part Defendants’ Partial Motion to Dismiss (#35) and grant Defendants’

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Motion to Strike (#46). Plaintiff filed his Objections to Magistrate Judge’s Report & Recommendation

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(#58) on December 29, 2011 and Defendants filed a response on December 30, 2011.

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The Court has conducted it’s de novo review in this case, has fully considered the objections of

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the Plaintiff, the pleadings and memoranda of the parties and other relevant matters of record pursuant

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to 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 3-2. The Court determines that the Magistrate Judge’s

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Report and Recommendation (#54) entered December 8, 2011, should be adopted and accepted.

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IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation (#54)
entered December 8, 2011, is adopted and accepted.
IT IS FURTHER ORDERED that Defendants’ Partial Motion to Dismiss (#35) Plaintiff’s four
claims as set forth in Count I are GRANTED IN PART and DENIED IN PART as follows:
1.

Plaintiff’s Eighth Amendment claims against Defendants Hegge and Chacon are barred

by the statute of limitations and DISMISSED WITH PREJUDICE;

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2.

Plaintiff’s Fourteenth Amendment claim against Defendant Jimenez is barred by the

statute of limitations and DISMISSED WITH PREJUDICE;
3.

Defendants’ Motion to Dismiss Plaintiff’s First Amendment claim against Defendant

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Herrera is DENIED because Defendants have not proven that Plaintiff failed to exhaust his

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administrative remedies.

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IT IS FURTHER ORDERED that Defendants’ Motion to Strike (#46) is GRANTED.

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IT IS SO ORDERED.

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DATED: This 31st day of January, 2012.

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_____________________________________
ROBERT C. JONES
Chief Judge

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