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Leyva v. Moreno

September 28, 2009

JOSEPH LEYVA, PLAINTIFF,
v.
LT. MORENO, ET AL., DEFENDANTS.



ORDER

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 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 General Order No. 262.

On August 26, 2009, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, 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 August 26, 2009, are adopted in full;

2. To the extent the complaint can be read as alleging Fourteenth and Eighth Amendment claims against defendant Mandeville, the motion to dismiss (docket no. 14) is granted for failure to state a claim;

3. To the extent that the motion to dismiss is based on the failure to exhaust administrative remedies, it is denied without prejudice; and

4. To the extent the motion to dismiss challenges the retaliation cause of action for failure to state a claim, it is denied.

20090928

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