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John Edward Mitchell v. Gov. A. Schwarzenegger

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 30, 2012

JOHN EDWARD MITCHELL, PLAINTIFF,
v.
GOV. A. SCHWARZENEGGER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 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 October 17, 2011, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. Plaintiff has filed objections to the findings and recommendations.*fn1

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 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 contain a small error that is corrected in this order. Where the findings and recommendations suggest that "Defendants' motion to dismiss Plaintiff's sixth claim should be denied without prejudice" on page 9, the Court finds that Defendants' motion should be granted according to the reasoning on page 11. The remainder of the findings and recommendations are supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed October 17, 2011, are adopted in full with the change explained above, which is accordingly reflected in this order;

2. Defendants' March 24, 2011 motion to dismiss (dkt. no. 38) is granted in part and denied in part, as follows:

a. Defendants Durfey, Schwarzenegger and Cate are dismissed based on plaintiff's failure to exhaust administrative remedies;

b. Plaintiff's state law claims contained in claim five are dismissed as untimely-filed;

c. Plaintiff's verbal harassment claims against defendants Singh, Cappel, McGuire and Fowler are dismissed;

d. Plaintiff's due process claims against defendants Singh, Cappel, Bickham and Scavetta, in claims three and seven, are dismissed;

e. Plaintiff's claims against defendants Bickham and Scavetta based on their role in the inmate grievance process, contained in claim seven, are dismissed;

3. Plaintiff's state law claims contained in claim six are dismissed for failure to state a claim;

4. Plaintiff's Eighth Amendment claim against defendants Haviland and Singh in claim four is dismissed;

5. In all other respects Plaintiff's amended complaint is dismissed with leave to amend the complaint in accordance with the findings and recommendations; and

6. Within thirty days after service of this order, plaintiff shall file a second amended complaint; should plaintiff fail to timely file such second amended complaint, this action shall proceed solely on claims one and two of the amended complaint (Dkt. No. 19).


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