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Dowd v. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 9, 2009

RODNEY LAMONT DOWD, PLAINTIFF,
v.
JAMES YATES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING DEFENDANTS YATES AND BONNER FROM ACTION WITH PREJUDICE

(Doc. 18)

Plaintiff Rodney Lamont Dowd ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. 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 November 17, 2008, the Magistrate Judge filed a Findings and Recommendations herein which was served on plaintiff and which contained notice to plaintiff that any objection to the Findings and Recommendations was to be filed within twenty days. In the Findings and Recommendations, the Magistrate Judge recommended that defendants Yates and Bonner be dismissed from the action for Plaintiff's failure to state any claims upon which relief may be granted against them. (Doc. 18).

Plaintiff filed an Objection to the Findings and Recommendations on December 8, 2008. (Doc. 19). Plaintiff objects to the dismissal of defendant Bonner from the action. Plaintiff argues that defendant Bonner acted with deliberate indifference in allowing "more correctional officers in Plaintiff's cell than what was needed to confront Plaintiff. He knew the amount of officers rushing in on inmate by him letting door stay open instead of closing when one or two officers came in constituted a threat and disregard [sic] by him that lead to excessive force by (6) officers." (Id.,at p.1).

However, in Plaintiff's second amended complaint, Plaintiff states under penalty of perjury that defendant Bonner was in the control tower over 100 feet away in a booth gun tower; Plaintiff also states in his verified amended complaint that defendant Bonner "was to [sic] far away in a quite [sic] booth like windowed tower to hear or see all the events that took place...[the] events was out of his vision especially when othe[r] C/Os blocked the cell door at the time with their bodies..." (Doc. 16, Second Amended Complaint, p.5).

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), 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 by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed November 17, 2008, is adopted in full;

2. Plaintiff's claims against Defendants Bonner and Yates are dismissed, with prejudice, for failure to state a claim upon which relief may be granted under section1983, and these defendants are dismissed from this action with prejudice; and

3. This action shall proceed on Plaintiff's second amended complaint, filed July 8, 2008, and addendum to Plaintiff's second amended complaint filed July 11, 2008, against Defendants Argurraide, Jenan, Ward, Defosses, Teater, Meyst, and McCollum for violation of the Eighth Amendment.

IT IS SO ORDERED.

20090109

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