Opinion
1:04-cv-6468 OWW DLB P, Order Adopting Findings and Recommendations (Doc. 17), Order Denying Motion to Dismiss (Doc. 14).
March 15, 2006
Plaintiff, Scott Hamby ("plaintiff"), a state prisoner proceeding with counsel, 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 Rule 72-302.
On February 1, 2006, the Magistrate Judge filed Findings and Recommendations herein which were served on the parties and which contained notice to the parties that any objections to the Findings and Recommendations were to be filed within twenty (20) days. On February 21, 2006, defendants filed objections to the Magistrate Judge's Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed February 1, 2006, are ADOPTED IN PART;
2. Defendants' motion to dismiss for failure to state a claim upon which relief may be granted, filed May 26, 2005, is DENIED; except as to the allegations against Supervising Defendants Scribner, Yarborough and Moore, which are conclusory and devoid of facts showing personal participation, knowledge and ratification or establishment, implementation of, or recklessly disregardful of a policy operating to deprive Plaintiff of constitutional rights. The motion to dismiss as to these three defendants is GRANTED with leave to amend;
3. Paragraph B(5) of the Prayer in the Complaint is STRICKEN;
4. Any amended complaint shall be filed within ten (10) days following receipt of this order; and
5. If no amendment is filed, remaining defendants shall respond to Plaintiff's complaint within thirty (30) days following date of service of this order or, if an amended complaint is filed, within forty (40) days.
IT IS SO ORDERED.