Opinion
CASE NO. ED CV 10-1440-AHM (PJW)
12-06-2011
KEVIN DERRAL FINCH, Plaintiff, v. v. LOPEZ, et al., Defendants.
ORDER ACCEPTING IN PART AND
REJECTING IN PART REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, the records on file, the Report and Recommendation of United States Magistrate Judge, and Plaintiff's Objections to the Report and Recommendation. The Court accepts the findings and recommendation of the Magistrate Judge as they pertain to Plaintiff's equal protection claim. As such, Plaintiff's equal protection claim is hereby dismissed with prejudice. The Court, however, rejects the Magistrate Judge's recommendation that Plaintiff's Eighth Amendment cruel and unusual punishment claims against Defendants Rios and Lopez should be dismissed with prejudice. Plaintiff has alleged sufficient facts to state a cognizable claim that Rios intentionally shoved him to the ground while he was in restraints, causing him to be injured, and that Lopez knew that he would do so and failed to intervene. For this reason, Plaintiff may proceed on these claims as outlined in the First Amended Complaint.
A. HOWARD MATZ
UNITED STATES DISTRICT JUDGE