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Jones v. Felker

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 17, 2010

MALIK JONES, PLAINTIFF,
v.
T. FELKER, 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 Rule 302.

On February 12, 2010, 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-one days from the date the findings and recommendations were served. 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 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. The Court will respond to one issue raised by plaintiff's objections to the magistrate judge's recommendations, however. In those objections, plaintiff for the first time alleges that he has filed several tort claims with the state of California, and some of those claims may regard the alleged assaults against him by defendants Brautingham, Betti, Cunningham and Hunter on November 6, 2007 and by defendant Lebeck on September 13 and 15, 2007. Plaintiff states that he is awaiting information from the California Victim Compensation and Government Claims Board, particularly its custodian of records James Reinmiller, which would inform him whether the claims he filed concerned the alleged assaults at issue. As the magistrate judge noted, however, defendants have offered evidence that no such claims were filed via the declarations of Mr. Reinmiller. As it is clear from Mr. Reinmiller's declarations that plaintiff did not comply with the claims-presentation requirement with respect to the alleged assaults on September 13 and 15, 2007 and November 6, 2007, the Court will adopt the magistrate judge's recommendation that plaintiff's state law assault and battery claims be dismissed without leave to amend.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed February 12, 2010, are adopted in full;

2. Plaintiff's variously-styled motions seeking injunctive relief, Dckt. Nos. 5, 6, 10, 35, 44, 46, 64, 71, and 73, are denied;

3. The August 10, 2009 motion to dismiss filed by defendants Betti, Brautingham, Cunningham, Hunter, and Callison, Dckt. No. 58, is granted in part and denied in part, with the following claims being dismissed without leave to amend:

a. plaintiff's claim against defendant Betti concerning the events of September 15, 2007;

b. plaintiff's due process claim against defendant Callison; and

c. plaintiff's state-law assault and battery claims against defendants Betti, Brautingham, Cunningham, and Hunter;

4. The October 23, 2009 motion to dismiss filed by defendant Lebeck, Dckt. No. 72, is granted in part and denied in part, and plaintiff's state-law assault and battery claims against defendant Lebeck are dismissed without leave to amend;

6. The August 10, 2009 Request for Judicial Notice filed by defendants Betti, Brautingham, Hunter, Callison, and Cunningham, Dckt. No. 62, is granted; and

7. The October 23, 2009 Request for Judicial Notice filed by defendant Lebeck is granted.

So ordered.

20100317

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