Jerry Cobb v. Kathy Mendoza-Powers et al

Filing 32

ORDER signed by District Judge Lawrence J. O'Neill on 2/7/2012 adopting 29 FINDINGS AND RECOMMENDATIONS; granting in part and denying in part 23 , 26 Motion to Dismiss and dismissing Complaint with leave to amend. First Amended Complaint due by 3/12/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JERRY COBB,

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Plaintiff,

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CASE NO. 1:10-cv–00642-LJO-BAM PC

v.
KATHY MENDOZA-POWERS, et al.,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING IN
PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS AND
DISMISSING PLAINTIFF’S COMPLAINT,
WITH LEAVE TO AMEND

Defendants.
(ECF No. 29)

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/ THIRTY-DAY DEADLINE
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Plaintiff Jerry Cobb is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (Religious Land Use and

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Institutionalized Persons Act of 2000 (RLUIPA)). 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 November 9, 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 21, 2011, an order

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issued granting Plaintiff an additional thirty days to file objections. More than thirty days have

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passed and no objections 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 Court finds the Findings

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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 November 14, 2011, is adopted in full;

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2.

Defendants’ Motion to Dismiss for Failure to Exhaust Administrative Remedies is

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GRANTED IN PART and DENIED IN PART as follows:

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a.

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Defendants’ Motion to Dismiss for Failure to Exhaust Administrative
Remedies is denied, without prejudice;

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b.

Defendants’ Motion to Dismiss on the ground that the action was not filed

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within the statute of limitations is DENIED as to Defendant Mendoza-

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Powers;

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c.

Defendants’ Motion to Dismiss for failure to state a claim is GRANTED for

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Plaintiff’s official capacity and injunctive relief claims against Defendant

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Mendoza-Powers;

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3.

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for failure to state a cognizable claim under section 1983;

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4.

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Plaintiff’s RLUIPA claims are dismissed, without leave to amend, as to the
individual defendants;

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5.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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6.

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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.

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Plaintiff’s Complaint, filed March 24, 2010, is DISMISSED, with leave to amend,

IT IS SO ORDERED.
Dated:
b9ed48

February 7, 2012

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

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