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Moran v. Dovey

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 15, 2009

NICOLAS MORAN, PLAINTIFF,
v.
JOHN DOVEY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING CERTAIN CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM, AND REFERRING MATTER BACK TO MAGISTRATE JUDGE

(Docs. 20 and 21)

Plaintiff Nicolas Moran is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 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 Rule 72-302.

On February 5, 2009, the Magistrate Judge screened Plaintiff's Second Amended Complaint and issued Findings and Recommendations which recommended dismissal of certain claims and defendants for failure to state a claim. 28 U.S.C. § 1915A. Plaintiff was given thirty days within which to object. After obtaining an extension of time, Plaintiff filed his Objection on April 20, 2009.

Plaintiff's Objection sets forth nothing more than a bare objection to the dismissal of his case. 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 February 5, 2009, is adopted in full;

2. This action shall proceed as one for damages on Plaintiff's second amended complaint, filed November 18, 2008, against Defendants Do, Moreno, Perez, Garza, and Hill for use of excessive force in violation of the Eighth Amendment, and against Defendants Harden, Chesley, and Aguilar for endangering Plaintiff's safety in violation of the Eighth Amendment;

3. Plaintiff's Eighth Amendment section 1983 claims other than those set forth above are dismissed, with prejudice, for failure to state a claim;

4. Plaintiff's claims based on the theft of his property and the inmate appeals process are dismissed, with prejudice, for failure to state a claim;

5. Plaintiff's section 1985 claims are dismissed, with prejudice, for failure to state a claim;

6. Plaintiff's state law tort claims for intentional infliction of emotional distress are dismissed, without prejudice, for failure to state a claim;

7. Defendants Chrones, Morales, Orosco, Yates, Maese, Hernandez, Polambo, Jackson, and Cessar are dismissed from this action based on Plaintiff's failure to state any claims against them; and

8. This matter is referred back to the Magistrate Judge for further proceedings.

IT IS SO ORDERED.

20090515

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