(PC) Mitchell v. Hernandez et al, No. 1:2007cv01322 - Document 62 (E.D. Cal. 2010)

Court Description: ORDER ADOPTING 53 FINDINGS AND RECOMMENDATIONS and Granting in Part and Denying in Part Defendants' 41 Motion to Dismiss, signed by Chief Judge Anthony W. Ishii on 5/4/2010. (Sondheim, M)

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(PC) Mitchell v. Hernandez et al Doc. 62 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 SHAULTON J. MITCHELL, 9 10 11 CASE NO. 1:07-cv-01322-AWI-DLB PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS v. HERNANDEZ, et al., (Doc. 41, 53, 61) 12 Defendants. 13 / 14 15 Plaintiff Shaulton J. Mitchell (“plaintiff”) is a state prisoner proceeding pro se in this civil 16 rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 17 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 18 On February 9, 2010, the Magistrate Judge filed a Findings and Recommendations herein 19 which was served on the parties and which contained notice to the parties that any objection to the 20 Findings and Recommendations was to be filed within twenty days. After receiving an extension 21 of time, Plaintiff filed an Objection to the Findings and Recommendations on April 14, 2010. 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de 23 novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and 24 Recommendations to be supported by the record and by proper analysis. Plaintiff’s contention that 25 he attempted to submit several appeals which prison officials improperly rejected is unsupported by 26 the evidence. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. The Findings and Recommendations, filed February 9, 2010, is adopted in full; 1 Dockets.Justia.com 1 2. Defendants’ motion to dismiss for Plaintiff’s failure to exhaust administrative 2 remedies, filed August 14, 2009, is GRANTED as to Plaintiff’s claims of failure to 3 protect, excessive force, retaliatory cell transfer, and retaliatory food deprivation and 4 those claims are dismissed without prejudice; 5 3. Defendants Martinez, Aguirre, and Masiel are dismissed from this action; 6 4. Defendants’ motion to dismiss is DENIED as to Plaintiff’s claims of food 7 8 deprivation; and 5. 9 This action proceeds against Defendants Hernandez, Bustos, Compelbel, Gutierrez, and Sloss for food deprivation in violation of the Eighth Amendment. 10 11 IT IS SO ORDERED. 12 Dated: 0m8i78 May 4, 2010 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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