Kindred v. California Department of Mental Health et al
Filing
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ORDER ADOPTING 25 FINDINGS AND RECOMMENDATIONS; ORDER GRANTING Defendants' 17 Motion to Dismiss; ORDER DISMISSING Claims, WITH LEAVE TO AMEND as Instructed by This Order; ORDER for Plaintiff to Either File Amended Complaint, or Notify Court That he is Willing to Proceed on Cognizable Claims (Thirty Day Deadline); ORDER Referring Case Back to Magistrate Judge for Further Proceedings, signed by Chief Judge Anthony W. Ishii on 9/11/2011. (Marrujo, C)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RICHARD S. KINDRED,
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Plaintiff,
vs.
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CALIFORNIA DEPARTMENT
OF MENTAL HEALTH, et al.,
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ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS
(Doc. 25.)
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS
(Doc. 17.)
ORDER DISMISSING CLAIMS, WITH
LEAVE TO AMEND AS INSTRUCTED
BY THIS ORDER
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1:08-cv-01321-AWI-GSA-PC
Defendants.
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ORDER FOR PLAINTIFF TO EITHER:
(1)
FILE AMENDED COMPLAINT, OR
(2)
NOTIFY COURT THAT HE IS
WILLING TO PROCEED ON
COGNIZABLE CLAIMS
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THIRTY DAY DEADLINE
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ORDER REFERRING CASE BACK TO
MAGISTRATE JUDGE FOR FURTHER
PROCEEDINGS
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_____________________________/
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Richard S. Kindred (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.
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On July 12, 2011, Findings and Recommendations were entered, recommending that (1) the
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motion to dismiss filed on December 14, 2010 by defendants Ahlin and Devine be granted; (2)
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certain claims be dismissed without leave to amend; and (3) certain claims be dismissed with leave
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to amend. (Doc. 25.) On August 10, 2011, Defendants filed a response to the findings and
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recommendations, and on August 15, 2011, Plaintiff filed a notice of non-opposition to the Findings
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and Recommendations. (Docs. 28, 29.)
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In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this
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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
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Court finds the Findings and Recommendations to be supported by the record and proper analysis.
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Defendants have filed a motion to quash and in conjunction, have requested the Court to set
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aside the Magistrate Judge's finding that defendant Fields was served with the complaint. (Doc. 28.)
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The motion to quash shall be referred back to the Magistrate Judge.
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Accordingly, THE COURT HEREBY ORDERS that:
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1.
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The Findings and Recommendations issued by the Magistrate Judge on July 12, 2011,
are ADOPTED in full;
2.
The motion to dismiss filed on December 14, 2010 by defendants Ahlin and Devine is
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GRANTED, as follows:
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(1)
Plaintiff’s § 1983 claims for monetary damages against defendants Ahlin and
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Devine in their official capacities are DISMISSED for failure to state a claim,
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without leave to amend;
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(2)
Plaintiff’s RLUIPA claims for monetary damages against Defendants Ahlin
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and Devine in their official capacities are DISMISSED for failure to state a
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claim, without leave to amend;
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(3)
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Plaintiff’s § 1983 claims against defendant Ahlin are DISMISSED for failure
to state a claim against her, without leave to amend; and
(4)
Plaintiff’s individual capacity RLUIPA claims are DISMISSED for failure to
state a claim, without leave to amend;
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3.
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Upon the Court’s sua sponte screening of the Complaint, it is ordered that:
(1)
Plaintiff states cognizable § 1983 claims in the Complaint for money damages,
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for the violation of Plaintiff's rights to freely exercise his religion under the
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First Amendment, against defendants Barbara Devine and Linda Fields;
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(2)
Plaintiff’s request for declaratory relief is DENIED, with prejudice;
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(3)
Plaintiff’s § 1983 claims for monetary damages against defendant Fields in her
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official capacity are DISMISSED for failure to state a claim, without leave to
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amend;
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(4)
Plaintiff’s RLUIPA claims for monetary damages against defendant Fields in
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her official capacity are DISMISSED for failure to state a claim, without leave
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to amend;
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(5)
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DISMISSED for failure to state a claim, without leave to amend; and
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(6)
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Plaintiff’s individual capacity RLUIPA claims against defendant Fields are
Plaintiff’s remaining official capacity RLUIPA claims are DISMISSED, with
leave to amend;
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Within thirty days from the date of service of this order, Plaintiff is required to either:
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(1) file an amended complaint curing the deficiencies identified in the Findings and
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Recommendations, or (2) notify the Court in writing that he does not wish to file an
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amended complaint and is instead willing to proceed only against defendants Barbara
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Devine and Linda Fields under § 1983 for money damages, for the violation of his
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rights to freely exercise his religion under the First Amendment; and
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5.
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This case, including Defendants' motion to quash, is referred back to the Magistrate
Judge for further proceedings.
IT IS SO ORDERED.
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Dated:
0m8i78
September 11, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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