(PS) Oliver v. Shelton et al, No. 2:2018cv01809 - Document 78 (E.D. Cal. 2022)

Court Description: ORDER signed by Chief District Judge Kimberly J. Mueller on 5/23/22 ADOPTING 75 Findings and Recommendations and GRANTING 70 Motion to Dismiss. Plaintiff's failure to file an opposition to the pending motion to dismiss is construed as non-opposition to the relief requested. Shelton and Hatley are dismissed with prejudice as defendants to this action. The action shall proceed against Defendant Mell only. (Kaminski, H)

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(PS) Oliver v. Shelton et al Doc. 78 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARON MICHAEL OLIVER, 12 Plaintiff, 13 14 No. 2:18-CV-1809-KJM-DMC v. ORDER DUANE SHELTON, et al., 15 Defendants. 16 Plaintiff, who is proceeding pro se, brings this civil action. The matter was 17 18 referred to a United States Magistrate Judge as provided by Eastern District of California local 19 rules. On January 5, 2022, the Magistrate Judge filed findings and recommendations, 20 21 which were served on the parties and which contained notice that the parties may file objections 22 within the time specified therein. No objections to the findings and recommendations have been 23 filed. The court presumes that any findings of fact are correct. See Orand v. United 24 25 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 26 reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations 27 of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] 28 ///// 1 Dockets.Justia.com 1 court . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 2 supported by the record and by the proper analysis. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The findings and recommendations filed January 5, 2022, are adopted in 2. Plaintiff’s failure to file an opposition to the pending motion to dismiss is 5 full; 6 7 construed as non-opposition to the relief requested; 8 3. The motion to dismiss filed by Defendants Shelton and Hatley, ECF No. 4. Shelton and Hatley are dismissed with prejudice as defendants to this 12 5. The action shall proceed against Defendant Mell only; 13 6. The fourth amended complaint, ECF No. 69, is dismissed with leave to 7. The operative pleading in this case is the fifth amended complaint filed on 9 70, is granted; 10 11 14 15 16 17 action; amend; January 19, 2022, ECF No. 76, which Defendant has answered; and 8. The case is referred back to the assigned Magistrate Judge for pre-trial 18 scheduling and further proceedings consistent with the Local Rules. 19 DATED: May 23, 2022. 20 21 22 23 24 25 26 27 28 2

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