UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 12, 2009
GERALD TAYLOR, PLAINTIFF,
KEN CLARK, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (Docs. 30, 34, 35, and 41) ORDER GRANTING PLAINTIFF THIRTY DAYS WITHIN WHICH TO FILE A SECOND AMENDED COMPLAINT CURING THE DEFICIENCY IN HIS BATTERY CLAIM
Plaintiff Gerald Taylor ("Plaintiff") is a state prisoner proceeding in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and California tort law. This action is proceeding on Plaintiff's amended complaint, filed June 20, 2007, against Defendant McKesson for battery and use of excessive physical force in violation of the Eighth Amendment; against Defendant Wofford for failure to protect Plaintiff, in violation of the Eighth Amendment; and against Defendants Adams and Clark under a theory of supervisory liability. On August 5, 2008, Defendants McKesson, Wofford, Adams and Clark ("Defendants") filed a motion to dismiss for failure to state a claim and for failure to exhaust. Fed. R. Civ. P. 12(b). 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 13, 2009, 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 must be filed within fifteen days. The parties did not file objections.
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 13, 2009, is adopted in full;
2. Defendants' motion to dismiss, filed August 5, 2008, is DENIED IN PART and GRANTED IN PART as follows:
a. Defendant McKesson's motion to dismiss the excessive force claim against him for failure to sufficiently allege an injury is DENIED;
b. Defendants Adams and Clark's motion to dismiss the section 1983 supervisory liability claim against them for failure to state a claim is DENIED;
c. Defendant McKesson's motion to dismiss the battery claim against him for failure to allege compliance with the California Tort Claims Act is GRANTED, with leave to amend; and
d. Defendants Wofford, Adams, and Clark's motion to dismiss for failure to exhaust is DENIED; and
3. Plaintiff is granted thirty (30) days within which to file a second amended complaint curing the deficiency in his state law battery claim.
IT IS SO ORDERED.
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