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Thomas D. Braley v. Wasco State Prison

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 30, 2011

THOMAS D. BRALEY,
PLAINTIFF,
v.
WASCO STATE PRISON, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATION AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS

(ECF No. 61, 62)

Plaintiff Thomas D. Braley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 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 August 24, 2011, the Magistrate Judge issued findings and recommendations recommending dismissal of certain claims and defendants. Plaintiff was given thirty days to file objections and objections were filed on September 27, 2011. In Plaintiff's objections he complains that the findings and recommendations misstated the date of the x-ray that he received after he was injured. A review of the second amended complaint shows that Plaintiff stated that he was x-rayed on September 20, 2007, however his objection states the x-ray occurred on September 21, 2007. The difference of one day in receiving the x-ray would not change the findings that Plaintiff failed to state a cognizable claim for deliberate indifference to his medical needs.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of this case. Having carefully reviewed the entire file, the undersigned 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 recommending, filed August 24, 2011, is adopted in full;

2. This action is proceeding on the second amended complaint, filed June 10, 2011, against Defendants Markmann and L.A. Miller for failure to protect in violation of the Eighth Amendment;

3. Defendants Williams, Martinez, Massa, George, Thompson, Wasco State Prison, C. Cooper, and M. Hunter are dismissed from this action, with prejudice, based upon Plaintiff's failure to state a cognizable claim against them;

4. Plaintiff's remaining Eighth Amendment claims and claim for injunctive relief are dismissed, with prejudice, for Plaintiff's failure to state a claim; and

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

IT IS SO ORDERED.

20110930

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