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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEONARD RANSOM, JR.,

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Plaintiff,

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v.

1:11-cv-01709-LJO-EPG (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
(ECF. NOS. 32, 38, & 61)

DANNY HERRERA, et al.,

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Defendants.

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Leonard Ransom, Jr. (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff’s First

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Amended Complaint, filed on January 23, 2015, against defendants Sergeant Ricky Brannum

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and Correctional Officer Danny Herrera for conspiracy, and against defendant Lieutenant L.

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Castro for violation of due process. (ECF Nos. 24 & 27). 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 June 7, 2016, defendants Herrera and Castro filed a motion to dismiss. (ECF No.

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32). On July 7, 2016, defendant Brannum filed a motion to dismiss. (ECF No. 38). Plaintiff

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opposed both motions (ECF Nos. 46 & 52). Plaintiff also filed a supplemental brief in support

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of his opposition to defendant Brannum’s motion to dismiss. (ECF No. 58). Defendants

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Herrera and Castro filed a reply to Plaintiff’s opposition. (ECF No. 48). Defendant Brannum

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filed a reply to Plaintiff’s opposition and to Plaintiff’s supplemental brief. (ECF Nos. 53 &

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59).

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On December 28, 2016, Magistrate Judge Erica P. Grosjean entered findings and

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recommendations, recommending that both motions to dismiss be granted. (ECF No. 61).
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Judge Grosjean also recommended giving Plaintiff leave to amend his complaint. (Id.). The

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parties were provided an opportunity to file objections to the findings and recommendations

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within thirty days. Defendants Herrera, Brannum and Castro (“Defendants”) objected to the

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findings and recommendations.

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recommendations and filed a reply to Defendants’ objections. (ECF Nos. 67 & 68).

(ECF No. 62).

Plaintiff objected to the findings and

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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the Court finds the findings and recommendations to be supported by the record and proper

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analysis.

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Defendants argue that leave to amend should not be granted because Plaintiff cannot

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cure the defects in his complaint. They allege that the “[t]he First Amended Complaint does

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not provide, or even hint at, allegations giving rise to an inference of a claim for retaliation for

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Plaintiff’s exercise of constitutional rights.” (ECF No. 62, p. 4). However, this is not true.

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Plaintiff has alleged that approximately two weeks before the alleged false accusations

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occurred, defendant Herrera was transporting Plaintiff to a court proceeding. (ECF No. 24, p.

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4). During the transport, defendant Herrera asked Plaintiff about Plaintiff’s pending criminal

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case. (Id.). Plaintiff refused to talk about the case. (Id. at p. 5). “C.O. Herrera became very

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hostile, and on the drive back to the prison, he cranked the back speakers (where [Plaintiff] was

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sitting) up, full bore, and continued to, periodically, give [Plaintiff] an angry stare in the rear-

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view mirror.” (Id.). While these allegations are not enough to state a claim, there is the

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potential inference that defendant Herrera later conspired against and retaliated against Plaintiff

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because Plaintiff exercised his Fifth Amendment right against self-incrimination. Additionally,

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the relevant legal standards were not fully set out in the prior screening orders. Therefore,

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Plaintiff will be given leave to file an amended complaint.

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Accordingly, THE COURT HEREBY ORDERS that:

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1. The findings and recommendations issued by the magistrate judge on December 28,

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2016, are ADOPTED in full;
2. Defendant Herrera and Castro’s motion to dismiss is GRANTED, with leave to
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amend;

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3. Defendant Brannum’s motion to dismiss is GRANTED, with leave to amend;

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4. Plaintiff has thirty days from the date of service of this order to file an amended

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complaint. Failure to file an amended complaint may result in dismissal of this

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case; and

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5. This case is referred back to the magistrate judge for further proceedings.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

March 27, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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