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Brush v. Harper

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 15, 2009

GARY H. BRUSH, PLAINTIFF,
v.
J. HARPER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING CERTAIN DEFENDANTS AND CLAIMS FROM ACTION (Doc. 74)

Plaintiff Gary H. Brush ("Plaintiff") is a state prisoner proceeding pro se 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 March 10, 2009, the Magistrate Judge filed a Findings and Recommendations herein whichwas served on Plaintiff, and which contained notice to Plaintiff that any objection to the Findings and Recommendations was to be filed within thirty days. Plaintiff filed an objection on May 19, 2009, after receiving an extension of time.

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, the Court HEREBY ORDERS that:

1. The Findings and Recommendations, filed on March 10, 2009, is adopted in full;

2. Defendants Freeland, Scott, Tucker, Soares, and Naftzger are DISMISSED from this action without prejudice;

3. Plaintiff's claim against defendant Lee for retaliation and failure to protect is DISMISSED without prejudice;

4. Plaintiff's claim against defendants Jasso, Rangel, Gonzales, and Cano for excessive force on March 16, 2006 is DISMISSED without prejudice; and

5. This action shall proceed only against defendants Jasso, Lee, Harper, Ortiz, King, and Cattallano for deliberate indifference in violation of the Eighth Amendment; defendants Rangel, Gonzales, Cano, and Greene for excessive force on September 14, 2006 in violation of the Eighth Amendment; and defendants Rangel, Gonzales, Cano, Greene, and Harper for retaliation in violation of the First Amendment.*fn1

IT IS SO ORDERED.


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