(PC) Green v. Chakotos et al, No. 1:2011cv01611 - Document 28 (E.D. Cal. 2013)

Court Description: ORDER ADOPTING 26 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims signed by District Judge Lawrence J. O'Neill on 11/19/2013. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 IRA GREEN, Case No. 1:11-cv-01611-LJO-DLB PC 10 Plaintiff, 11 v. 12 ORDER ADOPINT FINDINGS AND RECOMMEDNDATIONS RECOMMENDING TO DISMISS CERTAIN CLAIMS JOHN CHAKOTOS, 13 (ECF No. 26) Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Ira Green (“Plaintiff”) is a prisoner in the custody of the California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Currently before the Court is Plaintiff's second amended complaint, filed May 3, 2013. (ECF No. 25.) On September 20, 2013, the Magistrate Judge issued a findings and recommendations recommending dismissing certain claims. (ECF No. 26.) On October 23, 2013, Plaintiff filed objections to the findings and recommendations. (ECF No. 27.) Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis. Plaintiff’s objections argue that his claim of intentional infliction of emotional distress should not be dismissed. Although his second amended complaint was devoid of facts showing that he suffered extreme emotional distress, his objections state that he did in fact suffer extreme emotional 1 1 distress. However, Plaintiff second amended complaint also fails to plead facts of outrageous 2 conduct. Outrageous conduct must be so extreme as to exceed all bounds of that usually tolerated in 3 a civilized community. Corales, 567 F.3d at 571; Tekkle, 511 F.3d at 855; Simo, 322 F.3d at 622. As 4 such, Plaintiff fails to state a claim for intentional infliction of emotional distress. 5 Accordingly, it is HEREBY ORDDERED that: 6 1 This action proceed on Plaintiff's second amended complaint, filed May 3, 2013, 7 against Defendant John Chakotos for 1) deliberate indifference in violation of the Eighth 8 Amendment; and 2) state law negligence; 9 10 11 12 2. Plaintiff's remaining state law claims be dismissed, with prejudice, for failure to state a claim; and 3. This matter is referred back to the Magistrate Judge to initiate service of process proceedings. 13 14 15 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill November 19, 2013 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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