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Michael A. Omara v. Steven Smith

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 24, 2012

MICHAEL A. OMARA,
PLAINTIFF,
v.
STEVEN SMITH, ET AL., DEFENDANTS.

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

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (DOC. 30) ORDER REMANDING ACTION TO TUOLUMNE COUNTY SUPERIOR COURT

Plaintiff Michael A. Omara ("Plaintiff") is a former California state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Steven Smith and Jack St. Clair for deliberate indifference to a serious medical need in violation of the Eighth Amendment, and state law claims. This action was removed from Tuolumne County Superior Court on May 18, 2011. On June 28, 2011, Defendants filed a motion to dismiss. Doc. 15. 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 December 20, 2011, the Magistrate Judge filed a Findings and Recommendations which was served on the parties and which contained notice to the parties that any objection to the Findings and Recommendations was to be filed within twenty-one days. Doc. 30. No party filed a timely Objection to the Findings and Recommendations.

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 was provided the opportunity to amend his complaint to state a claim under 42 U.S.C. § 1983. On December 29, 2011, Plaintiff filed a notice that he did not intend to amend, and wished to proceed only on the remaining state law claims once this action was remanded. Doc. 31.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed December 20, 2011, is adopted in full;

2. Defendants' motion to dismiss, filed June 28, 2011, is GRANTED for Plaintiff's failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983;

2. Plaintiff's Eighth Amendment claim and supervisory liability claim are dismissed for failure to state a claim;

3. Defendants' motion to dismiss is DENIED as to exhaustion of administrative remedies pursuant to 42 U.S.C. § 1997e(a);

4. This action is REMANDED to the Tuolumne County Superior Court pursuant to 28 U.S.C. § 1447(c);

5. The Clerk of the Court is directed to mail a certified copy of this order of remand to the clerk of the Tuolumne County Superior Court; and

6. The Clerk of the Court is directed to administratively close this action.

IT IS SO ORDERED.

20120124

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