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Barretto v. Smith

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 6, 2009

FRANCISCO BARRETTO, PLAINTIFF,
v.
L. SMITH, ET AL., DEFENDANTS.

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 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 General Order No. 262.

On November 20, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Both parties have filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, 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 20, 2008 are adopted in full;

2. Defendants' August 8, 2008 motion to dismiss (Doc. No. 26) is granted in part and denied in part as follows:

a. Defendants' motion to dismiss plaintiff's complaint for failure to exhaust administrative remedies prior to filing suit as to the excessive use of force claims against defendants Smith and Look is denied;

b. Defendants' motion to dismiss plaintiff's complaint for failure to exhaust administrative remedies prior to filing suit as to the retaliation claims is granted as to defendants Schirmer and Wright but denied as to defendant Smith; and

c. Defendants' motion to dismiss plaintiff's complaint for failure to exhaust administrative remedies prior to filing suit as to the failure to protect claims against defendants Schirmer and Wright is granted.

20090306

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