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Kane v. Pierce

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 13, 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 DEFENDANT YORKE'S MOTION TO DISMISS

(Docs. 57 and 70)

ORDER REQUIRING DEFENDANT YORKE 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 26, 2009, the Magistrate Judge filed Findings and Recommendations recommending Defendant Yorke's 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 March 2, 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 26, 2009, is adopted in full;

2. Defendant Yorke's motion to dismiss, filed October 16, 2008, is GRANTED IN PART and DENIED IN PART as follows:

a. Defendant's motion to dismiss the claim against him in his individual capacity is DENIED;

b. Defendant's motion for judgment on the pleadings based on qualified immunity is DENIED; and

c. Defendant's motion to dismiss the official capacity claim against him is GRANTED; and

3. Defendant Yorke 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.

20090313

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