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Ellington v. Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 3, 2010

MARCUS RUBEN ELLINGTON, PLAINTIFF,
v.
CLARK, ET AL., DEFENDANTS.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF NO. 31)

Plaintiff Marcus Ruben Ellington ("Plaintiff") is a California state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act, and the Rehabilitation Act. 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 June 7, 2010, the Magistrate Judge filed a Findings and Recommendations that recommended dismissal of certain claims and defendants. The Findings and Recommendations were served on Plaintiff and contained notice to Plaintiff that any objection to the Findings and Recommendations was to be filed within twenty days. Plaintiff filed an Objection to the Findings and Recommendations on June 17, 2010.

In accordance with the provisions of 28 U.S.C. § 636(b)(1), 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.

Plaintiff's contention that individual defendants are liable under the ADA is without merit. Plaintiff's contention that Defendants violated the Fourth Amendment, due process, and equal protection is unsupported by the pleadings. Plaintiff's contention that all other defendants had "first hand knowledge" of the alleged violations is unsupported by the pleadings. The exhibits demonstrate only that Plaintiff grieved these issues. That alone does not demonstrate that the other defendants violated Plaintiff's constitutional rights.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed June 7, 2010, is adopted in full;

2. Defendants Patel, Castro, Guiang, N. Grannis, C. Hammond, S. Lopez, Ariarch, Schwarzenegger, K. Harrington, the Director of CDCR, and C. Kelso are DISMISSED from this action with prejudice for failure to state a claim;

3. This action SHALL proceed on Plaintiff's first amended complaint, filed April 30, 2010, against Defendant Akanno for violation of the Eighth Amendment and Defendant Kern Valley State Prison for violation of Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act; and

4. This action is referred to the Magistrate Judge for further proceedings.

IT IS SO ORDERED.

20100803

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