(PC) Brown v. Williams et al, No. 1:2009cv00792 - Document 39 (E.D. Cal. 2011)

Court Description: ORDER Adopting Findings and Recommendations 34 ; ORDER Dismissing Certain Claims, signed by District Judge Lawrence J. O'Neill on 4/8/11. (Verduzco, M)
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(PC) Brown v. Williams et al Doc. 39 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THORNELL BROWN, CASE NO.: 1:09-cv-00792-LJO-GBC (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 R. J. WILLIAMS, et al., ORDER DISMISSING CERTAIN CLAIMS 15 Defendants. ______________________________________/ (Doc. 34) 16 17 Plaintiff Thornell Brown (“Plaintiff”) is a state prisoner proceeding in forma pauperis (“IFP”) 18 in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s 19 complaint, filed May 4, 2009, against Defendants Williams and Gonzales (“Defendants”) for use of 20 excessive force and subjecting Plaintiff to unconstitutional conditions of confinement following the 21 use of force on May 23, 2005, in violation of the Eighth Amendment. (Docs. 1, 8). The matter was 22 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 23 302. 24 On May 6, 2010, Defendants filed a request for judicial notice, an unenumerated 12(b) 25 motion to dismiss pursuant to 28 U.S.C. §1915(g) and a 12(b)(6) motion to dismiss on grounds of 26 qualified immunity. (Docs. 16, 17). On February 3, 2011, the Magistrate Judge filed a Findings and 27 Recommendations herein which was served on the Plaintiff and which contained notice to the 28 Plaintiff that any objections to the Findings and Recommendations were to be filed within thirty 1 Dockets.Justia.com 1 days. On March 4, 2011, Plaintiff motioned for a forty-five-day extension to file objections to the 2 Findings and Recommendations and later submitted his objections on April 7, 2011. (Docs. 36, 38). 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has 4 conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds 5 the Findings and Recommendations to be supported by the record and by proper analysis. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The Findings and Recommendations, filed February 3, 2011, is adopted in full; 8 2. Defendants’ unenumerated 12(b) motion to dismiss pursuant to § 1915(g) is 9 DENIED; 10 3. Defendants’ 12(b)(6) motion to dismiss is GRANTED IN PART to the extent that the 11 excessive force claim against Defendants Williams and Gonzales is DISMISSED 12 WITH PREJUDICED based on Defendants’ entitlement to qualified immunity; and 13 4. Defendants’ 12(b)(6) motion to dismiss is DENIED IN PART based on finding that 14 Defendants were not entitled to qualified immunity for the conditions of confinement 15 claim. 16 17 18 19 20 21 22 23 24 25 26 27 IT IS SO ORDERED. Dated: b9ed48 April 8, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 28 2