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Tommy Elam v. Michael Hernandez

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 12, 2011

TOMMY ELAM, PLAINTIFF,
v.
MICHAEL HERNANDEZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Percy Anderson United States District Judge

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and accepts the findings, conclusions and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that defendant's Motion to Dismiss plaintiff's due process claim against Hernandez in his individual capacity is DENIED and defendant's Motion to Dismiss plaintiff's Eighth Amendment claim is GRANTED with leave to amend. If plaintiff decides to proceed on his Eighth Amendment deliberate indifference claim, he is ORDERED to file a Second Amended Complaint within thirty (30) days of the date of this Order.

20110712

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