Washington v. Adams et al

Filing 74

ORDER (1) Adopting 54 , 55 FINDINGS AND RECOMMENDATIONS,(2) DENYING Plaintiff's 51 Motion to Strike and DISREGARDING Surreply, (3) DENYING IN PART AND GRANTING Defendant's 38 Motion to Dismiss, and (4) DISMISSING Claim for Damages Ba sed on Qualified Immunity; ORDER REQUIRING Defendant to Respond within Thirty Days to Plaintiff's Motion to set aside the Dismissal of his Claims for Declaratory and Injunctive Relief signed by Chief Judge Anthony W. Ishii on 3/26/2012. (Sant Agata, S)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6
EASTERN DISTRICT OF CALIFORNIA
7
8

CHRISTOPHER N. WASHINGTON,

9

Plaintiff,

10
11

CASE NO. 1:09-cv-01666-AWI-SKO PC
ORDER (1) ADOPTING FINDINGS AND
RECOMMENDATIONS, (2) DENYING
PLAINTIFF’S MOTION TO STRIKE AND
DISREGARDING SURREPLY, (3) DENYING
IN PART AND GRANTING DEFENDANT’S
MOTION TO DISMISS, AND (4) DISMISSING
CLAIM FOR DAMAGES BASED ON
QUALIFIED IMMUNITY

v.
DERRAL G. ADAMS,

12

Defendant.

13
(Docs. 38, 51, 54, and 55)
14
ORDER REQUIRING DEFENDANT TO
RESPOND WITHIN THIRTY DAYS TO
PLAINTIFF’S MOTION TO SET ASIDE THE
DISMISSAL OF HIS CLAIMS FOR
DECLARATORY AND INJUNCTIVE RELIEF

15
16
17

(Docs. 65-70)
18
/
19
20

Plaintiff Christopher N. Washington, a state prisoner proceeding pro se and in forma

21

pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 21, 2009. The

22

matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

23

Local Rule 302.

24

This action is currently proceeding on Plaintiff’s second amended complaint, filed on March

25

24, 2011, against Defendant Adams on Plaintiff’s claim for damages arising from Defendant’s

26

alleged violation of Plaintiff’s rights under the Free Exercise Clause of the First Amendment of the

27

United States Constitution. Defendant was Warden of California State Prison-Corcoran (CSP-

28

///
1

1

Corcoran) during the relevant time period, and Plaintiff’s claim arises from Defendant’s denial of

2

his written request for a religious name change.

3

On August 24, 2011, Defendant filed a motion to dismiss for failure to state a claim and on

4

qualified immunity grounds. Fed. R. Civ. P. 12(b)(6). Plaintiff filed an opposition on September

5

6, 2011, and after obtaining an extension of time, Defendant filed a reply on September 19, 2011.

6

Local Rule 230(l). Plaintiff then filed a surreply and a motion to strike Defendant’s reply on

7

September 29, 2011. Fed. R. Civ. P. 12(f).

8

On November 29, 2011, the Magistrate Judge issued a finding and recommendations

9

recommending that Plaintiff’s motion to strike be denied and his surreply be disregarded, and a

10

findings and recommendations recommending that Defendant’s motion to dismiss for failure to state

11

a claim be denied but Defendant’s motion for dismissal on qualified immunity grounds be granted.

12

On February 6, 2012, after obtaining two extensions of time, Plaintiff filed objections and

13

a motion seeking relief from the screening order dismissing his claims for declaratory and injunctive

14

relief.1 (Docs. 65-70.) Defendant file not file a response to the objections or to the motion for relief

15

from the screening order. Local Rules 230(l), 304(d).

16

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de

17

novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and

18

recommendations to be supported by the record and by proper analysis. Plaintiff has presented no

19

grounds for the non-adoption of the Magistrate Judge’s findings and recommendation, and they shall

20

be adopted in full.

21

However, Plaintiff also seeks to set aside the screening order dismissing his claims for

22

declaratory and injunctive relief. At the time, Plaintiff was no longer incarcerated at California State

23

Prison-Corcoran and his claims were properly dismissed. Since that time, Plaintiff has been

24

transferred back to CSP-Corcoran and he seeks reinstatement of his claims, pointing out that he sued

25

///

26
27
28

1
Plaintiff’s appeal of the screening order is currently pending at the Ninth Circuit. However, because the
screening order is not yet final and appealable, Plaintiff’s notice of appeal did not divest the Court of jurisdiction.
Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007).

2

1

Defendant Adams in his personal and official capacities. Defendant did not file a response to

2

Plaintiff’s motion and he shall now be directed to do so.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1.

5
6

in full;
2.

7
8

The Court adopts the findings and recommendations filed on November 29, 2011,

Plaintiff’s motion to strike Defendant’s reply, filed on September 29, 2011, is denied
and Plaintiff’s surreply is disregarded;

3.

9

Defendant’s motion to dismiss, filed on August 24, 2011, is denied in part and
granted in part as follows:

10

a.

Defendant’s motion to dismiss for failure to state a claim is denied; and

11

b.

Defendant’s motion to dismiss Plaintiff’s First Amendment damages claim

12
13

on the ground of qualified immunity is granted; and
4.

Within thirty (30) days from the date of service of this order, Defendant shall file

14

a response to Plaintiff’s motion to set aside the order dismissing his claims for

15

declaratory and injunctive relief.

16
17

IT IS SO ORDERED.

18
19

Dated:
0m8i78

March 26, 2012
CHIEF UNITED STATES DISTRICT JUDGE

20
21
22
23
24
25
26
27
28
3