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Anthony Ray Evans v. Dennis L. Beck

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 16, 2012

ANTHONY RAY EVANS,
PLAINTIFF,
v.
DENNIS L. BECK, ET AL., DEFENDANTS.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND JUDGE (ECF Nos. 29 & 30)

Plaintiff Anthony Ray Evans is a state prisoner proceeding pro se in this civil rights action filed February 27, 2012 pursuant to 42 U.S.C. § 1983. (ECF No. 1). He declined Magistrate Judge jurisdiction. (ECF No. 4). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.

On November 1, 2012, Findings and Recommendations ("F&R") Denying Plaintiff's Motion for Reconsideration of Order Dismissing Third Amended Complaint with Leave to Amend*fn1 (ECF No. 30) were filed in which the Magistrate Judge recommended that Plaintiff's Motion for Reconsideration be DENIED by the District Judge. The parties were notified that objection, if any, was due within fourteen days.

On November 9, 2012, Plaintiff filed Objections to the Magistrate Judge F&R. (ECF No. 31).

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the F&R to be supported by the record and by proper analysis. In his Objections, Plaintiff re-argues Eighth Amendment claims of deliberate indifference and excessive force against Defendants Burrows, Steadman, Phillips, Sampson, and Sanders previously screened and dismissed by the Magistrate, again contending his prison records disclose he poses an obvious risk to cell-mates which Defendants ignored. These Eighth Amendment claims are barred by res judicata,*fn2 and additionally fail to suggest Defendants' knowing indifference to any serious risk of harm or serious medical need. Plaintiff also argues he should be allowed to pursue claim(s) against Defendant Matzen. The Magistrate's October 4, 2012 Order Dismissing Third Amended Complaint allows Plaintiff leave to amend as to Fourteenth Amendment claims against Defendant Matzen. (ECF No. 28 at 13:2-4). These arguments are not sufficient as objections and raise no material issue of law or fact under the F&R.

Accordingly, IT IS HEREBY ORDERED that:

1. The Court ADOPTS in full the Findings and Recommendations filed November 1, 2012 (ECF No. 30);

2. Plaintiff's Motion for Reconsideration (ECF No. 29) is DENIED; and

3. Plaintiff may file an amended complaint, as described in the Magistrate Judge's Order Dismissing Third Amended Complaint With Leave To Amend (ECF No. 28), no later than November 28, 2012.

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE


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