Ransom v. Herrera et al

Filing 69

ORDER Adopting 61 Findings and Recommendations re 32 , 38 & 61 , signed by Chief Judge Lawrence J. O'Neill on 3/27/17. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 LEONARD RANSOM, JR., 9 Plaintiff, 10 11 v. 1:11-cv-01709-LJO-EPG (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (ECF. NOS. 32, 38, & 61) DANNY HERRERA, et al., 12 Defendants. 13 14 Leonard Ransom, Jr. (“Plaintiff”) is a state prisoner proceeding pro se with this civil 15 rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff’s First 16 Amended Complaint, filed on January 23, 2015, against defendants Sergeant Ricky Brannum 17 and Correctional Officer Danny Herrera for conspiracy, and against defendant Lieutenant L. 18 Castro for violation of due process. (ECF Nos. 24 & 27). The matter was referred to a United 19 States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 7, 2016, defendants Herrera and Castro filed a motion to dismiss. (ECF No. 21 32). On July 7, 2016, defendant Brannum filed a motion to dismiss. (ECF No. 38). Plaintiff 22 opposed both motions (ECF Nos. 46 & 52). Plaintiff also filed a supplemental brief in support 23 of his opposition to defendant Brannum’s motion to dismiss. (ECF No. 58). Defendants 24 Herrera and Castro filed a reply to Plaintiff’s opposition. (ECF No. 48). Defendant Brannum 25 filed a reply to Plaintiff’s opposition and to Plaintiff’s supplemental brief. (ECF Nos. 53 & 26 59). 27 On December 28, 2016, Magistrate Judge Erica P. Grosjean entered findings and 28 recommendations, recommending that both motions to dismiss be granted. (ECF No. 61). 1 1 Judge Grosjean also recommended giving Plaintiff leave to amend his complaint. (Id.). The 2 parties were provided an opportunity to file objections to the findings and recommendations 3 within thirty days. Defendants Herrera, Brannum and Castro (“Defendants”) objected to the 4 findings and recommendations. 5 recommendations and filed a reply to Defendants’ objections. (ECF Nos. 67 & 68). (ECF No. 62). Plaintiff objected to the findings and 6 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 7 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 8 the Court finds the findings and recommendations to be supported by the record and proper 9 analysis. 10 Defendants argue that leave to amend should not be granted because Plaintiff cannot 11 cure the defects in his complaint. They allege that the “[t]he First Amended Complaint does 12 not provide, or even hint at, allegations giving rise to an inference of a claim for retaliation for 13 Plaintiff’s exercise of constitutional rights.” (ECF No. 62, p. 4). However, this is not true. 14 Plaintiff has alleged that approximately two weeks before the alleged false accusations 15 occurred, defendant Herrera was transporting Plaintiff to a court proceeding. (ECF No. 24, p. 16 4). During the transport, defendant Herrera asked Plaintiff about Plaintiff’s pending criminal 17 case. (Id.). Plaintiff refused to talk about the case. (Id. at p. 5). “C.O. Herrera became very 18 hostile, and on the drive back to the prison, he cranked the back speakers (where [Plaintiff] was 19 sitting) up, full bore, and continued to, periodically, give [Plaintiff] an angry stare in the rear- 20 view mirror.” (Id.). While these allegations are not enough to state a claim, there is the 21 potential inference that defendant Herrera later conspired against and retaliated against Plaintiff 22 because Plaintiff exercised his Fifth Amendment right against self-incrimination. Additionally, 23 the relevant legal standards were not fully set out in the prior screening orders. Therefore, 24 Plaintiff will be given leave to file an amended complaint. 25 Accordingly, THE COURT HEREBY ORDERS that: 26 1. The findings and recommendations issued by the magistrate judge on December 28, 27 28 2016, are ADOPTED in full; 2. Defendant Herrera and Castro’s motion to dismiss is GRANTED, with leave to 2 1 amend; 2 3. Defendant Brannum’s motion to dismiss is GRANTED, with leave to amend; 3 4. Plaintiff has thirty days from the date of service of this order to file an amended 4 complaint. Failure to file an amended complaint may result in dismissal of this 5 case; and 6 5. This case is referred back to the magistrate judge for further proceedings. 7 8 9 10 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ March 27, 2017 UNITED STATES CHIEF DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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