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Kenneth Gene Montgomery v. Sgt. Brooks

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


July 16, 2012

KENNETH GENE MONTGOMERY, PLAINTIFF,
v.
SGT. BROOKS, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff proceeds in this action with counsel pursuant to 42 U.S.C. § 1983. Plaintiff has filed a notice of non-opposition to: (1) the motion to dismiss defendants High Desert State Prison ("HDSP'), California Department of Corrections and Rehabilitation ("CDCR"), and the State of California (the "State") (collectively, the "State Defendants"), pursuant to the Eleventh Amendment (Doc. No. 19), made by defendants Brooks, Parker,*fn1 and the State Defendants; and (2) defendants Shaw and McDonald's motion to dismiss without leave to amend for failure to state a claim against defendants (Doc. No. 29).

Plaintiff's notice additionally reads that plaintiff does not oppose defendants' motion for dismissal as to defendant Brooks. See Doc. No. 31 at 2:1-2. While defendant Brooks is named as a movant on defendants' April 27, 2012 motion to dismiss the State defendants, the court is not aware of any outstanding motion to dismiss plaintiff's claims against defendant Brooks. To the extent plaintiff no longer wishes to proceed on his claims against defendant Brooks, plaintiff is referred to the procedures for dismissal outlined at Federal Rule of Civil Procedure 41. The court will file a separate order directing that defendant Brooks respond to the complaint within 21 days.

The parties have consented to the jurisdiction of this court. See Doc. Nos. 11, 26, 27, 34.

In accordance with the above, IT IS HEREBY ORDERED that:

1. The hearing currently scheduled for July 26, 2012 before the undersigned is vacated; and

2. Defendants' motions to dismiss, filed April 27, 2012 (Doc. No. 19) and June 6, 2012 (Doc. No. 29) are granted, and plaintiff's claims against defendants High Desert State Prison, California Department of Corrections and Rehabilitation, State of California, Warden McDonald, and Nurse Shaw are dismissed with prejudice.


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