Mootry v. Flores et al

Filing 67

ORDER ADOPTING 66 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER DENYING 64 Defendants' Motion to Dismiss; and ORDER Directing Defendants to File an Answer to the Second Amended Complaint Within Thirty (30) Days, signed by District Judge Lawrence J. O'Neill on 4/17/2013. (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
R E C O M M E N D A T IO N S R E G A R D IN G
DEFENDANTS’ MOTION TO DISMISS
P LA IN T IF F ’ S S E C O N D A M E N D E D
COMPLAINT (ECF Nos. 64, 66)

v.
E. G. FLORES, et al.,

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Defendants.
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 March 26, 2013, the Magistrate Judge issued Findings and Recommendations that

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Defendants’ motion to dismiss Plaintiff’s second amended complaint for failure to state a claim be

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DENIED, and Defendants’ motion to dismiss Plaintiff’s second amended complaint based on

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qualified immunity be DENIED without prejudice. The Findings and Recommendations were served

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on the parties and contained notice that any objections to the Findings and Recommendations were

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to be filed within fourteen (14) days. More than fourteen (14) days have passed and no objections

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have been filed.

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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, issued March 26, 2013, are adopted in full;

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Defendants’ motion to dismiss for failure to state a claim, filed July 5, 2012, is

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DENIED;

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3.

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Defendants’ motion to dismiss based on qualified immunity is DENIED without
prejudice; and

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4.

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Within thirty days from the date of service of this order, Defendants shall file an
answer to the Second Amended Complaint.

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IT IS SO ORDERED.
Dated:

April 17, 2013

/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE

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