Ramon Murillo v. D. Godfrey et al

Filing 138

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Jesus G. Bernal for Report and Recommendation 115 , MOTION to Dismiss 100 , MOTION for Permission to File Surreply 110 , REPLY to Motion to Dismiss 106 . IT IS HEREBY ORDERED: Plaint iff's Motion for Permission to File Surreply (Docket No. 110) is granted. Plaintiff's Request for Appointment of Counsel (Docket No. 106) is denied without prejudice. Plaintiff's Motion for Judicial Notice (Docket No 106) is granted as to Exhibits 1-9 and denied as to Exhibits 10-15. Defendants' Motion to Dismiss Portions of Plaintiff's Third Amended Complaint and for Severance of Defendant Romero ("Motion to Dismiss") (Docket No. 100) is granted in part and denied part. The remaining Defendants shall file an Answer to the remaining portions of the Third Amended Complaint within fourteen (14) days. (see document for further details) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MONA SALCIDA MURILLO,
formerly known as Ramon Murillo,
Plaintiff,

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v.

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D. GODFREY, et al.,

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the findings, conclusions and recommendation of the Magistrate Judge reflected in
the November 30, 2023 Report and Recommendation of United States Magistrate
Judge (“Report and Recommendation”), but – in light of Plaintiff’s filing of
“Plaintiff[’s] Intent to Proceed Solely on Claims Not Dismiss[ed] by the Magistrate
Judge” (“Notice of Intent”) and the contents thereof – modifies this Order
Accepting the Report and Recommendation accordingly:
IT IS HEREBY ORDERED:
1.

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[DOCKET NOS. 100, 110]

The Court has conducted the review required by 28 U.S.C. § 636 and accepts

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ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

Defendants.

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Case No. 2:18-cv-02342-JGB-JC

Plaintiff’s Motion for Permission to File Surreply (Docket No. 110) is
granted.

///

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2.

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denied without prejudice.
3.

Plaintiff’s Motion for Judicial Notice (Docket No 106) is granted as to
Exhibits 1-9 and denied as to Exhibits 10-15.

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Plaintiff’s Request for Appointment of Counsel (Docket No. 106) is

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Claim Eight and all claims against Defendants in their official

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capacities in the Third Amended Complaint are deemed withdrawn

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and dismissed.

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5.

Defendants’ Motion to Dismiss Portions of Plaintiff’s Third Amended

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Complaint and for Severance of Defendant Romero (“Motion to

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Dismiss”) (Docket No. 100) is granted in part and denied part as

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follows:

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a.

Claim Three as against defendant C. Ramirez is dismissed
without prejudice;1

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b.

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Claim Four, to the extent predicated on Eighth Amendment
deliberate indifference, is dismissed without prejudice;

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c.

Claim Five is dismissed without prejudice;

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d.

Claim Seven as against defendants Wingfield and Corral is
dismissed without prejudice;

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e.

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Claim Seven as against defendant Davis, to the extent

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As explained in the Report and Recommendation, there has been some ambiguity in the
record as to whether Plaintiff intended to continue to proceed with this action as against
Defendant C. Ramirez, who is named as a Defendant in only Claim Three, but who has not been
served and has not appeared. (See Report and Recommendation at 9 n.12; Report and
Recommendation at 20 n.16). Allowing for the possibility that Plaintiff intended to proceed
against such Defendant, the Report and Recommendation recommended dismissal of only the
Eighth Amendment deliberate indifference predicate for Claim Three as against C. Ramirez, but
did not recommend dismissal of the First Amendment retaliation and Eighth Amendment
excessive force predicates for Claim Three as against him. However, in light of the contents of
Plaintiff’s Notice of Intent – which, notwithstanding the foregoing – omits reference to
C. Ramirez as a Defendant in Claim Three and otherwise, the Court construes this to mean that
Plaintiff does not wish to proceed as against C. Ramirez, and accordingly dismisses the entirety
of Claim Three as against such Defendant without prejudice.

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predicated on Eighth Amendment deliberative indifference, is

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dismissed without prejudice; and

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f.
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the Motion to Dismiss is otherwise denied.

In light of the substance of Plaintiff’s Notice of Intent, this action will

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proceed only on the following claims against the following six

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Defendants as specified below: Sgt. D. Godfrey,2 Correctional Officer

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(C/O) Wingfield (erroneously sued as Winfield or Windfield), C/O

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Corral,3 C/O N. Romero, Lieutenant Varella (erroneosly sued as

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“Verla” or “Valenero”), and Sergeant Davis, and all other claims,

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predicates, and Defendants are dismissed from this action without

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prejudice:

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a.

Claim One – a First Amendment retaliation claim against
Defendants Godfrey and Wingfield;

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b.

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Claim Two – Eighth Amendment Excessive Force, Eighth

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Amendment Deliberate Indifference, and First Amendment

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Retaliation predicates against Defendants Godfrey and

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Wingfield;
c.

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Claim Three – Eighth Amendment Excessive Force, Eighth

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Amendment Deliberate Indifference, and First Amendment

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Retaliation predicates against Defendant Corral;
d.

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Claim Four – First Amendment Retaliation and Eighth
Amendment Excessive Force predicates against N. Romero;

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e.

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Claim Six – a First Amendment Retaliation claim against

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K. Godfrey/the Estate of D. Godfrey has appeared for Sgt. Godfrey, who is deceased.
(See Docket No. 64).
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Although Defendant Corral’s last name is Ramirez, he has been referred to as Defendant
Corral to avoid confusion with Defendant C. Ramirez, a separate Defendant. (See Report and
Recommendation at 9 n.12).

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Defendant Varela; and

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f.

Claim Seven – First Amendment Retaliation and Eighth

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Amendment excessive force predicates against Defendant

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Davis.

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The remaining Defendants shall file an Answer to the remaining
portions of the Third Amended Complaint within fourteen (14) days.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order on

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IT IS SO ORDERED
DATED: April 9, 2024
________________________________________
HONORABLE JESUS G. BERNAL
UNITED STATES DISTRICT JUDGE

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