-CW Jerry A Burton v. M Yarborough
Filing
97
ORDER ACCEPTING IN PART AND REJECTING IN PART SECOND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge George H Wu. It is therefore ORDERED as follows: 1. Defendants' motions to dismiss (docket no. 82, filed November 4, 2009, and docket no. 84, filed November 6, 2009) are granted in part and denied in part. 2. Plaintiff's Fourth Amended Complaint is dismissed with leave to amend as further indicated below. 3. Within thirty (30) days of the filing date of this order , Plaintiff may file either a notice of amendment (indicating that he opts to amend by proceeding on his fifth cause of action alone and deleting his other claims); or (b) a fifth amended complaint (including his fifth cause of action and amended statements of any of the other causes of action noted above as capable of being amended). 96 [SEE ORDER FOR FURTHER DETAILS] (gr)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
12
JERRY A. BURTON,
Plaintiff,
13
14
v.
15
M. YARBOROUGH, et al.,
16
Defendants.
)
)
)
)
)
)
)
)
)
)
No. CV 04-7209-GW(CW)1
ORDER ACCEPTING IN PART AND
REJECTING IN PART SECOND REPORT
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
17
18
Pursuant to 28 U.S.C. § 636(b)(1)(C), the court has reviewed the
19
entire record in this action, as well as the Second Report and
20
Recommendation of the United States Magistrate Judge.
21
to the Report and Recommendation have been received.
No objections
22
In light of Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), cert.
23
denied, 80 U.S.L.W. 3462 (U.S. Apr. 30, 2012)(No. 11-834), the court
24
finds that Plaintiff has stated a claim under Fed. R. Civ. P. 8(a) and
25
12(b)(6) in his fifth cause of action (deliberate indifference re:
26
prison conditions), and that he may be able to amend to state a claim
27
1
28
Plaintiff has another pending action: Burton v. Haws, No. CV
08-5834-GHK(CW). This Order concerns only the present action.
1
1
in one or more of three other causes of action, namely the fourth
2
(conspiracy), sixth (due process) and seventh (failure to supervise).
3
On the other hand, the court agrees with the Report and Recommendation
4
that Plaintiff has failed to state a claim or to show that he could
5
successfully amend as to three other causes of action, namely the
6
first (right of association), second (retaliation), and third
7
(deliberate indifference re: retaliation).
8
It is therefore ORDERED as follows:
9
1.
Defendants’ motions to dismiss (docket no. 82, filed
10
November 4, 2009, and docket no. 84, filed November 6, 2009) are
11
granted in part and denied in part.
12
13
14
2.
Plaintiff’s Fourth Amended Complaint is dismissed with leave
to amend as further indicated below.
3.
Within thirty (30) days of the filing date of this order,
15
Plaintiff may file either a notice of amendment (indicating that he
16
opts to amend by proceeding on his fifth cause of action alone and
17
deleting his other claims); or (b) a fifth amended complaint
18
(including his fifth cause of action and amended statements of any of
19
the other causes of action noted above as capable of being amended).
20
21
22
23
4.
If Plaintiff does not file a timely response to this order,
his action may be subject to dismissal for failure to prosecute.
5.
Once Plaintiff files a response to this order the court will
issue further orders as appropriate.
24
25
DATED:
June 17, 2012
26
GEORGE H. WU
United States District Judge
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?