Mootry v. Flores et al
Filing
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ORDER ADOPTING 47 FINDINGS AND RECOMMENDATIONS; ORDER GRANTING IN PART AND DENYING IN PART 32 Defendants' Motion to Dismiss; ORDER DENYING AS MOOT 35 Plaintiff's Motion to Amend; and ORDER DIRECTING PLAINTIFF to File a Second Amended Complaint, signed by District Judge Lawrence J. O'Neill on 12/20/2011. Second Amended Complaint due within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL MOOTRY,
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CASE NO. 1:09-cv-01252-LJO-BAM PC
Plaintiff,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING IN
PART AND DENYING IN PART DEFENDANTS
MOTION TO DISMISS (ECF No. 47)
v.
E. G. FLORES, et al.,
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ORDER DENYING PLAINTIFF’S MOTION TO
AMEND AS MOOT (ECF No. 35)
Defendants.
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THIRTY-DAY DEADLINE
/
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Plaintiff Michael Mootry (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United
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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On November 16, 2011, the Magistrate Judge filed a Findings and Recommendations herein
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which was served on the parties and which contained notice to the parties that any objections to the
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Findings and Recommendations were to be filed within thirty days. On December 19, 2011, Plaintiff
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filed an Objection. In his Objection Plaintiff raises new arguments and presents additional factual
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allegations that were not included in the First Amended Complaint or the Opposition to the Motion
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to Dismiss. The Court declines to exercise its discretion to consider Plaintiff’s arguments asserted
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for the first time in the Objection to the Findings and Recommendations. Espinosa -Matthews v.
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California, 432 F.3d 1021, 1026 n.4 (9th Cir. 2005); United States v. Howell, 231 F.3d 615, 621-622
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(9th Cir. 2000).
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the undersigned finds the
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findings and recommendations to be supported by the record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The Findings and Recommendations, filed June 6, 2011, is adopted in full;
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2.
Defendants’ Motion to Dismiss, filed June 10, 2011, is granted in part and denied in
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part as follows:
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a.
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Plaintiff’s Religious Land Use and Institutionalized Persons claims are
dismissed, without leave to amend, as moot;
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b.
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Plaintiff’s First Amended Complaint is dismissed, with leave to amend for
failure to state a claim;
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c.
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Defendants’ Motion to Dismiss based upon qualified immunity is denied,
without prejudice;
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3.
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Within thirty days from the date of service of this order Plaintiff shall file a Second
Amended Complaint;
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4.
Plaintiff’s Motion to Amend, filed June 30, 2011, is denied as moot; and
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6.
If Plaintiff fails to file an amended complaint in compliance with this order, this
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action will be dismissed, with prejudice, for failure to state a claim.
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IT IS SO ORDERED.
Dated:
b9ed48
December 20, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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