IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 28, 2008
VIRGIL HOLT, PLAINTIFF,
D. G. STOCKMAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE MOTION FOR RECONSIDERATION (DOC 26)
On June 18, 2008, findings and recommendations were entered, recommending dismissal of certain claims and defendants. On July 21, 2008, objections to the findings and recommendations were filed by Plaintiff. On August 7, 2008, an order was entered, adopting the findings and recommendations of the Magistrate Judge. The order adopting the findings and recommendations inadvertently directed the Clerk's Office to close this case. The case was closed in error. Pursuant to the June 18, 2008, finding and recommendations, the May 15, 2006, second amended complaint states a claim against certain defendants.
Accordingly, IT IS HEREBY ORDERED that:
1. The August 20, 2008, motion for reconsideration is granted.
2. The August 8, 2008, order adopting the findings and recommendations is vacated.
3. The Findings and Recommendations issued by the Magistrate Judge on June 18, 2008, are adopted in full; and
4. The following claims against the following defendants are dismissed with prejudice for failure/inability to state a claim:
a. for violation of Plaintiff's right to due process under the Fourteenth Amendment against B. Sullivan based on the processing of administrative grievances;
b. for violation of Plaintiff's right to due process under the Fourteenth Amendment against defendants D.G. Stockman, J. Marshal, M. Meske, B. Sullivan, Mr. Yamamoto, D.W. Sheppard/Brooks, 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 Plaintiff's confinement while retained in Ad-Seg pending transfer to another facility against any/all defendants;
d. for deliberate indifference to Plaintiff's 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.
5. Defendants M. Meske, D.W. Sheppard/Brooks, J. Marshal, J. Yates, B. Sullivan, B. Reengal, Mrs. King, E. Lawton, Don Oftedahl, F. Jaramillo, Mr. Tepperman, Dr. Greer, E. Bastien, and R. Dowlings are dismissed with prejudice for failure/inability to state a claim.
6. The Clerk's Office is directed to re-open this case.
IT IS SO ORDERED.
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