Mr. Benito Marquez v. L. McEwen et al

Filing 31

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Manuel L. Real for NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's First Amended Complaint , 21 and Report and Recommendation (Issued), 28 . See attached order for further details. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BENITO MARQUEZ,
Plaintiff,

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ORDER ACCEPTING FINDINGS,

v.

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Case No. CV 15-7911 R (SS)

CONCLUSIONS AND RECOMMENDATIONS

L. McEWEN, et al.,

OF UNITED STATES MAGISTRATE

Defendants.

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JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the

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First Amended Complaint in the above-captioned matter, all the

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records and files herein, and the Report and Recommendation of

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the

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Objections to the Report and Recommendation has passed and no

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Objections have been received.

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and adopts the findings, conclusions and recommendations of the

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Magistrate Judge, amended as follows.

United

States

Magistrate

Judge.

The

time

for

filing

Accordingly, the Court accepts

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Following the issuance of the Report and Recommendation,

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Plaintiff filed a Notice of Voluntary Dismissal of his claims

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against

Warden

McEwen.

Accordingly,

Defendants’

Motion

to

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Dismiss

the

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Judge’s

recommendations

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moot.

claims

against

Warden

pertaining

McEwen
to

that

and

the

Magistrate

Defendant

are

now

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Accordingly, IT IS ORDERED THAT:

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1.

Defendants’

Motion

to

Dismiss

the

First

Amended

Complaint is DENIED.

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2.

Defendants’ Motion to Dismiss is DENIED to the extent

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that it is based on Plaintiff’s alleged failure to exhaust, but

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without prejudice to reasserting the defense on summary judgment.

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3.

Defendants’ Motion to Dismiss is DENIED to the extent

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that it seeks dismissal of the claims against Officer Aguirre and

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Dr. Fitter for failure to state a claim pursuant to Federal Rule

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of Civil Procedure 12(b)(6).

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4.

Defendants’ Motion to Dismiss is DENIED AS MOOT to the

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extent that it seeks dismissal of the supervisory liability claim

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against Warden McEwen for failure to state a claim pursuant to

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Rule 12(b)(6).

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5.

Defendants’ Motion to Dismiss is DENIED to the extent

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that it is based on Defendants’ claims of qualified immunity, but

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without prejudice to reasserting the defense on summary judgment.

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6.

Defendants Officer Aguirre and Dr. Fitter are ORDERED
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to file Answers to the First Amended Complaint, as amended by the

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dismissal of the claims against Warden McEwen, within fourteen

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days of the date of this Order.

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The Clerk shall serve copies of this Order by United States
mail on Plaintiff and on counsel for Defendants.

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DATED:

September 9, 2016

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__________
MANUEL L. REAL
UNITED STATES DISTRICT JUDGE

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