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Kane v. Pierce

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 6, 2009

SHAUN KANE, PLAINTIFF,
v.
RICHARD PIERCE, ET AL. DEFENDANTS.

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

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS MIMS, FLORES, AND TILKES' MOTION TO DISMISS (Docs. 42 and 69)

ORDER REQUIRING DEFENDANTS MIMS, FLORES, AND TILKES TO FILE A RESPONSE TO THE SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 27)

Plaintiff Shaun Kane ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis 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 January 21, 2009, the Magistrate Judge filed Findings and Recommendations recommending Defendants Mims, Flores, and Tilkes' motion to dismiss be granted in part and denied in part. The parties were granted thirty days within which to file objections. Objections were due on or before February 23, 2009, and none were filed.

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 January 21, 2009, is adopted in full;

2. Defendants Mims, Flores, and Tilkes' motion to dismiss, filed June 13, 2008, is GRANTED IN PART and DENIED IN PART as follows:

a. Defendants' motion to dismiss claims against Defendants Mims, Flores, and Tilkes on the grounds of qualified immunity is DENIED;

b. Defendants' motion to dismiss Plaintiff's claim against Defendant Mims in her official capacity is DENIED; and

c. Defendants' motion to dismiss claims against Defendants Flores and Tilkes in their official capacities is GRANTED; and

3. Defendants Mim, Flores, and Tilkes shall file a response to Plaintiff's second amended complaint within thirty days from the date of service of this order.

IT IS SO ORDERED.

20090306

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