(PS) Ervin v. Jones

Opinion

GARY WAYNE ERVIN, No. 2:19-cv-01883-KJM-CKD PS Plaintiff, v. ORDER JAMES DRENNAN, et al., Defendants. On December 30, 2020, the magistrate judge filed findings and recommendations (ECF No. 59), which were served on the parties and which contained notice that any objections to the findings and recommendations were to be filed within fourteen (14) days. On January 20, 2021, plaintiff filed untimely objections to the findings and recommendations (ECF No. 62), which nevertheless have been considered by the court. On February 3, 2021, defendants filed a response to those objections. (ECF No. 63.) In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. As to any portion of the proposed findings of fact to which no objection has been made, the court assumes its correctness and decides the matter on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). ] The court has reviewed the applicable legal standards and, good cause appearing, concludes that it is appropriate to adopt the findings and recommendations in full. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations (ECF No. 59) are ADOPTED IN FULL; 2. Defendants’ motion to dismiss (ECF No. 52) is DENIED IN PART and GRANTED IN PART as follows: a. The motion to dismiss is DENIED as to plaintiff's Fourteenth Amendment claim against Dr. Janet Abshire arising from her alleged failure to treat plaintiffs psoriasis symptoms; and b. The motion to dismiss is GRANTED as to all other claims and defendants, which are hereby dismissed from the action with prejudice; 3. Plaintiffs request to stay decision on the findings and recommendations, ECF No. 64, is denied as moot; 4. Plaintiffs motion for retention of this action by the chief judge is denied as unnecessary; and 5. The case is referred back to the assigned magistrate judge for all further pretrial proceedings. DATED: September 28, 2021. CHIEF ED STATES DISTRICT JUDGE