Opinion
No. CIV S-05-0192 RRB DAD P.
March 31, 2008
ORDER
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 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 General Order No. 262.
On August 31, 2007, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fifteen days. Neither party has filed objections to the findings and recommendations.
The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge's analysis. Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed August 31, 2007 are adopted in full;
2. Defendants' motion to dismiss plaintiff's complaint is granted in part and denied in part as follows:
a. Defendants' motion to dismiss plaintiff's complaint for failure to exhaust administrative remedies is denied as to plaintiff's First Amendment and Eighth Amendment claims.
b. Defendants' motion to dismiss plaintiff's complaint for failure to exhaust administrative remedies as to plaintiff's due process claim is granted as to defendants Allen, Baker, Barham, Clendenin, Hansen, Hill, Medina, Mussen, Purviance, Reyes, Robinson, and Sosa and denied as to the other named defendants.
c. Defendants' motion to dismiss plaintiff's complaint for failure to state a retaliation claim under the First Amendment and failure to state a due process claim is denied;
d. Defendants' motion to dismiss plaintiff's complaint for failure to state a claim under the Eighth Amendment is granted; and
3. In accordance with the above and Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure, all defendants remaining in this action are directed to file a responsive pleading to plaintiff's complaint.