(PC) Rodgers v. Tilton et al, No. 2:2007cv02269 - Document 40 (E.D. Cal. 2010)
Court Description: ORDER signed by Judge William B. Shubb on 1/25/10 ORDERING that the findings and recommendations filed 11/10/09, are adopted in full; and Dfts' 3/10/09 motion to dismiss 23 is granted in part and denied in part as follows: Dfts' motion to dismiss against dft Pettigrew is denied; Dfts' motion to dismiss pltf's complaint against dfts Moreno, Whitten, Wyant; and against dft Pettigrew, aside from his Eighth Amendment claim, is granted; Dfts Moreno, Whitten, and Wyant are dismissed from this action; and Dfts Athanassious and Pettigrew are directed to file an answer to pltfs complaint w/i 30 days. (Becknal, R)
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(PC) Rodgers v. Tilton et al Doc. 40 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEVIN RODGERS, Plaintiff, 11 vs. 12 13 No. CIV S-07-2269 WBS DAD P JAMES TILTON, et al., Defendants. 14 ORDER / 15 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 16 17 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 18 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. On November 10, 2009, the magistrate judge filed findings and recommendations 19 20 herein which were served on all parties and which contained notice to all parties that any 21 objections to the findings and recommendations were to be filed within twenty days. On 22 December 2, 2009, plaintiff was granted an additional thirty days to file objections. The time 23 period has now expired and neither party has filed objections to the findings and 24 recommendations. 25 ///// 26 ///// 1 Dockets.Justia.com The court has reviewed the file and finds the findings and recommendations to be 1 2 supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY 3 ORDERED that: 1. The findings and recommendations filed November 10, 2009, are adopted in 4 5 full; and 2. Defendants’ March 10, 2009 motion to dismiss (Doc. No. 23) is granted in part 6 7 and denied in part as follows: a. Defendants’ motion to dismiss plaintiff’s complaint for failure to exhaust 8 9 10 administrative remedies prior to filing suit as to his Eighth Amendment excessive use of force claim against defendant Pettigrew is denied; 11 b. Defendants’ motion to dismiss plaintiff’s complaint for failure to exhaust 12 administrative remedies prior to filing suit as to his constitutional claims against defendants 13 Moreno, Whitten, and Wyant and any constitutional claims against defendant Pettigrew, aside 14 from his Eighth Amendment excessive use of force claim, is granted; c. Defendants’ motion to dismiss plaintiff’s complaint for failure to state a claim 15 16 for deliberate indifference under the Eighth Amendment against defendant Athanassious is 17 denied; 18 d. Defendants’ motion to dismiss plaintiff’s complaint for failure to state a claim 19 for deliberate indifference under the Eighth Amendment against defendant Pettigrew is denied as 20 unnecessary because such a claim is not presented by plaintiff; 21 e. Defendants Moreno, Whitten, and Wyant are dismissed from this action; and 22 f. Defendants Athanassious and Pettigrew are directed to file an answer to 23 plaintiff’s complaint within thirty days. 24 25 26 2 1 DATED: January 25, 2010 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 3
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