Marquise DeAngelo Loftis et al v. Gary Salcedo et al

Filing 44

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge John F. Walter for Report and Recommendation (Issued) 43 ; Motion to Dismiss The Complaint 32 . IT IS ORDERED that: (1) The Magistrate Judge's Report and Recommendation is approved and accepted. (2) Defendants' Motion to Dismiss (Motion) [Dkt. 32] is GRANTED in part and DENIED in part, pursuant to Fed. R. Civ. P. 12(b)(6), as follows: (See order for full details). (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARQUISE DeANGELO LOFTIS,

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Plaintiff

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v.
GARY SALCEDO and NURSE E.
GRANT,

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ORDER ACCEPTING FINDINGS
AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

Defendants.

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Case No. 2:18-cv-3263-JFW (GJS)

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, all
pleadings, motions, and other documents filed in this action, including the Report
and Recommendation of the assigned United States Magistrate Judge. The deadline
to file Objections to the Report has passed, and no Objections have been filed with
the Court.

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Accordingly, IT IS ORDERED that:

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(1)

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accepted.

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(2)

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part and DENIED in part, pursuant to Fed. R. Civ. P. 12(b)(6), as follows:

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The Magistrate Judge’s Report and Recommendation is approved and
Defendants’ Motion to Dismiss (“Motion”) [Dkt. 32] is GRANTED in

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(a)

the Motion is DENIED as to Plaintiff’s Eighth Amendment

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Excessive Force claim against Defendant Salcedo;

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(b)

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medical care claim against Defendant Grant, and this claim is

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DISMISSED with leave to amend;

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(c)

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supervise/train claim against Defendant Salcedo, and this claim is

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DISMISSED with leave to amend;

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(d)

the Motion is GRANTED with respect to Plaintiff’s denial of

the Motion is GRANTED with respect to Plaintiff’s failure to

the Motion is GRANTED with respect to Plaintiff’s deliberate

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indifference to safety claim against Defendant Salcedo, and this claim

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is DISMISSED without leave to amend;

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(3)

Plaintiff’s claims against the Doe Defendants are dismissed without

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prejudice;

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(4)

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with the Report and Recommendation within 30 days of this Order; 1 and

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///

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///

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Plaintiff is granted leave to file a First Amended Complaint consistent

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If Plaintiff chooses to file a First Amended Complaint, Plaintiff must clearly designate on
the face of the document that it is the “First Amended Complaint,” it must bear the docket number
assigned to this case, and it must be retyped or rewritten in its entirety, preferably on the courtapproved form. Plaintiff shall not include new defendants or new allegations that are not
reasonably related to the claims asserted in the FAC. In addition, the First Amended Complaint
must be complete without reference to the Complaint, or any other pleading, attachment, or
document. In lieu of filing an amended complaint, Plaintiff may voluntarily dismiss the defective
claims against Defendants Grant and Salcedo without prejudice, pursuant to Federal Rule of Civil
Procedure 41(a), and the case will proceed against Defendant Salcedo of Plaintiff’s Eighth
Amendment claim. The Clerk of Court is directed to mail Plaintiff a blank Notice of Dismissal
Form, which the Court encourages Plaintiff to use.

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(5)

Plaintiff’s failure, if any, to timely to file a First Amended Complaint

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will result in this action proceeding solely on the remaining claims as against the

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remaining defendant (i.e., the Eighth Amendment Excessive Force claim against

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Defendant Salcedo) absent further order of the Court.

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IT IS SO ORDERED.

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DATE: October 9, 2019

__________________________________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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