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Bagent v. Pierce

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 2, 2009

JOHN BAGENT, PLAINTIFF,
v.
RICHARD PIERCE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL, AND DENYING DEFENDANTS' MOTION TO DISMISS (Docs. 22 and 34)

ORDER DISMISSING PLAINTIFF'S DUE PROCESS CLAIM, WITH LEAVE TO FILE SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 9)

Plaintiff John Bagent ("Plaintiff") is a civil detainee proceeding pro se and in forma pauperis 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 December 8, 2008, the Magistrate Judge filed a Findings and Recommendations herein which was served on the parties and which contained notice to the parties that any objections to the Findings and Recommendations were to be filed within fifteen days. On January 12, 2009, Plaintiff filed an Objection.

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 December 8, 2008, is adopted in full;

2. Defendants Mimms and Johnson's motion to dismiss for failure to state a claim and motion for a more definite statement, filed June 5, 2008, is DENIED;

3. Pursuant to the Court's screening authority under 28 U.S.C. § 1915(e)(2)(B)(ii), Plaintiff's procedural due process claim is dismissed, with leave to amend, for failure to state a claim upon which relief may be granted under section 1983;

4. Plaintiff has thirty (30) days from the date of service of this order within which to file a second amended complaint; and

5. The Clerk's Office shall send Plaintiff a civil rights complaint form.

IT IS SO ORDERED.

20090202

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