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Todd v. Kern Valley State Prison

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 6, 2009

MICHAEL ANDRE TODD, PLAINTIFF,
v.
KERN VALLEY STATE PRISON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the exercise of jurisdiction by the Magistrate Judge pursuant to 28 U.S.C. § 636(c). On March 30, 2009, the Court issued an order finding that Plaintiff's complaint states cognizable claims against Defendants Dill, Kildgord, Hedgpeth and Lopez, for violation of the Eighth Amendment, but failed to state a claim against Defendants California Department of Corrections and Rehabilitation, Kern Valley State Prison, Zamora and Pate. Plaintiff's Fourteenth Amendment claim also failed. The Court ordered Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. On April 23, 2009, Plaintiff notified the Court that he does not wish to amend and is willing to proceed on the claims found cognizable. Based on Plaintiff's notice, this order now issues. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to amend prior to dismissing for failure to state a claim).

Accordingly, it is HEREBY ORDERED that:

1. This action proceed on Plaintiff's complaint, filed October 6, 2008, against Defendants Dill, Kildgord, Hedgpeth and Lopez, for violation of the Eighth Amendment ;

2. Plaintiff's Fourteenth Amendmed claim is dismissed for failure to state a claim; and

3. Defendants California Department of Corrections and Rehabilitation, Kern Valley State Prison, Zamora and Patel are dismissed.

IT IS SO ORDERED.

20090506

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