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Marlin Lattereal Royal v. S. Knight

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 3, 2012

MARLIN LATTEREAL ROYAL,
PLAINTIFF,
v.
S. KNIGHT, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF No. 33) THIRTY DAY DEADLINE

Plaintiff Marlin Lattereal Royal ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on August 12, 2009. On September 3, 2009, Plaintiff consented to the jurisdiction of the Magistrate Judge. (ECF No. 5.) This action is proceeding on the First Amended Complaint, filed August 19, 2010. (ECF No. 15. Defendants filed a Motion to Dismiss on December 1, 2011. (ECF No. 23.) On February 29, 2012, Findings and Recommendations issued recommending granting in part and denying in part Defendants' Motion to Dismiss. (ECF No. 33.) On March 8, 2012, Defendants consented to the Jurisdiction of the Magistrate Judge. (ECF No. 34.) On April 3, 2012, this action was reasssigned to the undersigned. Accordingly, the Findings and Recommendations, issued February 29, 2012, shall become the order of this Court.

Based on the foregoing, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, issued February 29, 2012, is the order of this Court;

2. Defendants' Motion to Dismiss, filed December 1, 2011, is GRANTED IN PART and DENIED IN PART as follows:

a. Plaintiff's claims against Defendants Turner and Gardner are DISMISSED, without prejudice, for failure to exhaust administrative remedies;

b. Plaintiff's excessive force and deliberate indifference claims against Defendant Knight based upon the incident in the standup cage are DISMISSED, without prejudice, for failure to exhaust administrative remedies;

c. Defendants' Motion to Dismiss Plaintiff's failure to protect claims against Defendant Clark is DENIED;

d. Defendants' Motion to Dismiss Plaintiff's retaliation claim against Defendant Knight is DENIED;

3. Defendants Turner and Gardner are DISMISSED from this action;

4. This action shall proceed on the First Amended Complaint against Defendant Knight for excessive force in violation of the Eighth Amendment and retaliation in violation of the First Amendment, and Defendant Clark for failure to protect in violation of the Eighth Amendment; and

5. Defendants shall file a responsive pleading within thirty days from the date of service of this order.

IT IS SO ORDERED.

20120403

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