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Carlos Pena v. Robert Sillen

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 10, 2011

CARLOS PENA,
PLAINTIFF,
v.
ROBERT SILLEN, ET AL.,
DEFENDANTS.

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

Docs. 12 and 13

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS FROM ACTION

ORDER REQUIRING DEFENDANTS VALENCIA AND DEVER TO RESPOND TO SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS

Plaintiff Carlos Pena, a state prisoner proceeding pro se, filed this civil action on September 5, 2008, in Fresno County Superior Court. Defendants Huckabay, Ericson, Tucker, Valencia, and Dever removed it to the court on February 27, 2009. . 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 January 26, 2011, a Findings and Recommendations was filed in which the Magistrate Judge screened Plaintiff's Second Amended Complaint and recommended dismissal of certain claims and parties for failure to state a claim. 28 U.S.C. § 1915A. The parties were notified that objections, if any, were due within thirty days. No objections were filed In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the 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 Court adopts the Findings and Recommendations filed on January 26, 2011, in full;

2. This action shall proceed on Plaintiff's second amended complaint, filed September 18, 2009, against Defendants Valencia and Dever for use of excessive force, in violation of the Eighth Amendment;

3. Plaintiff's Eighth Amendment medical care claims, Eighth Amendment excessive force claim against Defendant Tucker, and First Amendment retaliation claim are dismissed, with prejudice, for failure to state a claim;

4. Plaintiff's state law tort claims are dismissed, without prejudice, for failure to state a claim;

5. Plaintiff's claims for injunctive and declaratory relief are dismissed for failure to state a claim;

6. Defendants Huckabay, Ericson, Tucker, Hanner, and Sillen are dismissed from the action; and

7. Defendants Valencia and Dever shall file a response to Plaintiff's second amended complaint within thirty (30) days from the date of service of this order.

IT IS SO ORDERED.

20110310

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