UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 6, 2008
VIRGIL E. HOLT, PLAINTIFF,
D. STOCKMAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE: FINDINGS & RECOMMENDATIONS (#20)
Plaintiff is a state prisoner proceeding pro se in this civil rights action. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On June 18, 2008, Findings and Recommendations were entered, recommending dismissal of certain claims and Defendants. On July 21, 2008, Plaintiff filed objections to the Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73-305, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the Findings and Recommendations to be supported by the record and proper analysis.
Accordingly, THE COURT HEREBY ORDERS that:
1. The Findings and Recommendations issued by the Magistrate Judge on June 18, 2008, are adopted in full;
2. This action proceed on Plaintiff's second amended complaint filed on May 15, 2006, against the following Defendants on the following claims:
a. against B. Silva, R. Zavala, J. Mendoza, M.F. Martinez, T.J. Caldwell, and Does 18-25 for failing to decontaminate his person and living quarters from the pepper spray and failing to provide Plaintiff with clean clothing and linens;
b. against M.F. Martinez for causing Plaintiff to sleep for eleven days on a mattress "contaminated" with pepper spray;
c. against L. Chrones, S. Sherman, W.R. Villareal, B. Silva, M.F. Martinez, J. Mendoza, R. Zavala, T.J. Caldwell, and Does 18-25 for failing to decontaminate plaintiff for seventeen days after being pepper sprayed;
d. against Doe 18 for failing to provide him with underwear that did not have pepper spray on them and for failing to provide cleaning materials for Plaintiff to clean the pepper spray from his living quarters;
e. against B. Silva, M.F. Martinez, R. Zavala, and J. Mendoza for ignoring Plaintiff's request for decontamination of his person, living quarters, and medical attention due to prolonged exposure to pepper spray;
f. against T.J. Caldwell for failing to respond to Plaintiff's request for medical attention due to his prolonged exposure to pepper spray; and
g. for retaliation against M. Vella, D. Means, D.G. Stockman, Mr. Yamamoto, D.D. Ortiz, R. Leon, M.T. Cisneros, D. Bravo, R. Lowden, L. Chrones, L. Marquez, R.M. Terrell, R. Gibson, J.P. Cordova, and Does 2-13 & 17.
3. Plaintiff's following claims against the following Defendants shall be dismissed with prejudice for failure/inability to state a claim:
a. for violation of his right to due process under the Fourteenth Amendment against B. Sullivan based on the processing of administrative grievances;
b. for violation of his right to due process under the Fourteenth Amendment against Defendants D.G. Stockman, J. Marshal, M. Meske, B. Sullivan, Mr. Yamamoto, D.W. Sheppard/Blooks, L. Chrones, L. Marquez, J. Yates, D.D. Ortiz, R. Lowden, D. Means, J.P. Cordova, D. Bravo, M. Vella, R.M. Terrell, Mrs. King, M.T. Cisneros, G. Reengal, E. Lawton, Don Oftendhal, F. Jaramillo, Dr. Tepperman, R. Leon, Dr. Greer, E. Bastine, R. Gibson, R. Dowling and Does 1-17;
c. for the general conditions of his confinement while retained in Ad-Seg pending transfer to another facility against and/all Defendants;
d. for deliberate indifference to his serious medical needs against any/all Defendants;
e. for use of excessive force against B. Silva;
f. for authorizing the use of pepper spray to extract Plaintiff from his cell against L. Chrones; and
g. for failing to abate B. Silva's use of chemical agents on Plaintiff against S. Sherman, W.R. Villareal, J. Mendoza, M.F. Martinez, R. Zavala, R. Dowlings, T.J. Caldwell, and Does 1 & 14-16.
4. Defendants M. Meske, D.W. Sheppard/Brooks, J. Marshal, J. Yates, B. Sullivan, B. Reengal, Mrs. King, E. Lawton, Don Oftendahl, F. Jaramillo, Mr. Tepperman, Dr. Greer, E. Bastien, and R. Dowlings are dismissed with prejudice for failure/inability to state a claim.
IT IS SO ORDERED.
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