(PC) Smith v. Yates et al, No. 1:2009cv00808 - Document 17 (E.D. Cal. 2010)

Court Description: ORDER ADOPTING in FULL the FINDINGS and RECOMMENDATIONS, DISMISSING Certain Claims and Defendants Without Leave to Amend and DISMISSING Certain Claims With Leave to Amend 6 , 13 , signed by Judge Oliver W. Wanger on 3/8/10: Defendants Yates, Gray , Fogel, C. Huckabay, J. Hutchins, M. Hodges-Wilkins, J.A. Herrera, Marion E. Spearman, Walker, S. Kern, C. Tingey, Fiegen, N. Grannis, T. Jackson, and B. Daveiga are DISMISSED for this action; and This matter is REFERRED back to the Magistrate Judge for further proceedings. (Hellings, J)

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(PC) Smith v. Yates et al Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL LeNOIR SMITH, 10 CASE NO. 1:09-cv-00808-OWW-SMS PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING CERTAIN CLAIMS AND DEFENDANTS WITHOUT LEAVE TO AMEND AND DISMISSING CERTAIN CLAIMS WITH LEAVE TO AMEND 11 v. 12 YATES, et al., 13 Defendants. (Docs. 6 and 13) 14 / 15 Plaintiff Michael LeNoir Smith is a state prisoner proceeding 16 pro se and in forma pauperis in this civil rights action pursuant 17 to 42 U.S.C. § 1983. The matter was referred to a United States 18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 19 Rule 302. 20 On December 15, 2009, the Magistrate Judge screened 21 Plaintiff’s Complaint, and issued a Findings and Recommendations 22 recommending that various of Plaintiff’s claims be dismissed 23 without prejudice, that one of Plaintiff’s claims be dismissed with 24 prejudice, and that leave to file an amended complaint be granted 25 for Plaintiff to attempt to cure defects in two of his claims. 26 After obtaining an extension of time, Plaintiff filed a timely 27 Objection on February 26, 2010. 28 1 Dockets.Justia.com 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), 2 this Court has conducted a de novo review of this case. 3 carefully reviewed the entire file, the Court finds the Findings 4 and Recommendations to be supported by the record and by proper 5 analysis. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Having 8 The Findings and Recommendations, filed December 15, 2009, is adopted in full; 9 2. Plaintiff’s Complaint, filed June 3, 2009, be dismissed, 10 granting Plaintiff leave to amend his claims against 11 Defendant Lubken for violation of Plaintiff’s rights to 12 equal protection and for retaliating against Plaintiff; 13 3. Plaintiff’s due process and Eighth Amendment claims 14 alleged in count one of the Complaint be dismissed, with 15 prejudice, for failure to state a claim under section 16 1983; 17 4. Plaintiff’s claims alleged in counts two through six as 18 identified in the Complaint be dismissed from the action 19 without prejudice, pursuant to Rule 18(a); 20 5. Defendants Yates, Gray, Fogal, C. Huckabay, J. Hutchins, 21 M. Hodges-Wilkins, J.A. Herrera, Marion E. Spearman, 22 Walker, S. Kern, C. Tingey, Fiegen, N. Grannis, T. 23 Jackson, and B. Daveiga are dismissed from this action; 24 and 25 6. 26 This matter is referred back to the Magistrate Judge for further proceedings. 27 IT IS SO ORDERED. 28 Dated: March 8, 2010 /s/ Oliver W. Wanger 2 1 emm0d6 UNITED STATES DISTRICT JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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