Tristin D. King v. Jamar R. Williams

Filing 22

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge David O. Carter for Report and Recommendation (Issued) 21 . IT IS ORDERED that: (1) Defendant's Motion to Dismiss is DENIED in PART and GRANTED in PART, pursuant to Fed. R. Civ. P. 12(b)(6), as follows: (a) the Motion is GRANTED with respect to Plaintiff's First Amendment retaliation claim and this claim is dismissed with leave to amend. (See order for full details) (efc)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TRISTIN D. KING,

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Plaintiff

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Case No. 2:20-cv-00209-DOC (GJS)

v.
JAMAR R. WILLIAMS,

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ORDER ACCEPTING FINDINGS
AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

Defendant.

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

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pleadings and other documents filed in this action, including the Report and

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Recommendation (Dkt. 21, “Report”) of the assigned United States Magistrate

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Judge. No objections to the Report have been filed within the time allowed. Having

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completed its review, the Court accepts the findings and recommendations set forth

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in the Report.

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Accordingly, IT IS ORDERED that:

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(1) Defendant’s Motion to Dismiss is DENIED in PART and GRANTED in

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PART, pursuant to Fed. R. Civ. P. 12(b)(6), as follows:
(a)

the Motion is GRANTED with respect to Plaintiff’s First

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Amendment retaliation claim and this claim is dismissed with

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leave to amend;

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(b)

the Motion is GRANTED with respect to Plaintiff’s Eighth

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Amendment Excessive Force claim and this claim is dismissed

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with leave to amend;

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(c)

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the Motion is DENIED with respect to Plaintiff’s Eighth
Amendment Deliberate Indifference to Safety Claim; and

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(2)

Plaintiff is GRANTED leave to file a First Amended Complaint

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consistent with the Report and Recommendation and this Order or a notice of

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voluntary dismissal dismissing his defective claims within thirty (30) days of this

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Order; 1

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(3)

If Plaintiff fails to file a First Amended Complaint this action will

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proceed solely on the remaining claim against Defendant Williams for an Eighth

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Amendment Deliberate Indifference to Safety violation.

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DATE: January 8, 2021

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_______________________________
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE

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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. Alternatively, Plaintiff may voluntarily dismiss the defective claims against Defendant
Williams without prejudice, pursuant to Federal Rule of Civil Procedure 41(a) and proceed solely
on his deliberate indifference to safety 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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