-DLB (PC) Omara v. Smith et al, No. 1:2011cv00812 - Document 33 (E.D. Cal. 2012)

Court Description: ORDER signed by District Judge Lawrence J. O'Neill on 1/24/2012 adopting 30 FINDINGS AND RECOMMENDATIONS and REMANDING CASE to Tuolumne County Superior Court. A Certified Copy of remand order sent to Tuolumne County Superior Court. CASE CLOSED. (Lundstrom, T)

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-DLB (PC) Omara v. Smith et al Doc. 33 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MICHAEL A. OMARA, 9 10 11 12 CASE NO. 1:11-CV-00812-LJO-DLB PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS (DOC. 30) v. STEVEN SMITH, et al., Defendants. 13 ORDER REMANDING ACTION TO TUOLUMNE COUNTY SUPERIOR COURT / 14 15 Plaintiff Michael A. Omara (“Plaintiff”) is a former California state prisoner proceeding pro 16 se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against 17 Defendants Steven Smith and Jack St. Clair for deliberate indifference to a serious medical need in 18 violation of the Eighth Amendment, and state law claims. This action was removed from Tuolumne 19 County Superior Court on May 18, 2011. On June 28, 2011, Defendants filed a motion to dismiss. 20 Doc. 15. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 21 636(b)(1)(B) and Local Rule 302. 22 On December 20, 2011, the Magistrate Judge filed a Findings and Recommendations which 23 was served on the parties and which contained notice to the parties that any objection to the Findings 24 and Recommendations was to be filed within twenty-one days. Doc. 30. No party filed a timely 25 Objection to the Findings and Recommendations. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de 27 novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and 28 Recommendations to be supported by the record and by proper analysis. 1 Dockets.Justia.com 1 Plaintiff was provided the opportunity to amend his complaint to state a claim under 42 2 U.S.C. § 1983. On December 29, 2011, Plaintiff filed a notice that he did not intend to amend, and 3 wished to proceed only on the remaining state law claims once this action was remanded. Doc. 31. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The Findings and Recommendations, filed December 20, 2011, is adopted in full; 6 2. Defendants’ motion to dismiss, filed June 28, 2011, is GRANTED for Plaintiff’s 7 failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983; 8 2. 9 Plaintiff’s Eighth Amendment claim and supervisory liability claim are dismissed for failure to state a claim; 10 3. 11 Defendants’ motion to dismiss is DENIED as to exhaustion of administrative remedies pursuant to 42 U.S.C. § 1997e(a); 12 4. 13 This action is REMANDED to the Tuolumne County Superior Court pursuant to 28 U.S.C. § 1447(c); 14 5. 15 The Clerk of the Court is directed to mail a certified copy of this order of remand to the clerk of the Tuolumne County Superior Court; and 16 6. The Clerk of the Court is directed to administratively close this action. 17 IT IS SO ORDERED. 18 Dated: b9ed48 January 24, 2012 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2

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