Rodriguez v. CDCR Departmental Review Board et al

Filing 67

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS to GRANT and DENY Defendants' Motion to Dismiss 52 , 60 , 66 , signed by District Judge Anthony W. Ishii on 2/21/15: 30-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LOUIS V. RODRIGUEZ,
Plaintiff,

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Case No. 1:12-cv-00757-AWI-JLT (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO GRANT
AND DNEY DEFENDANTS' MOTION
TO DISMISS

vs.
CDCR DEPARTMENTAL REVIEW
BOARD, et al.,

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(Docs. 52, 60, 66)

Defendants.

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Plaintiff, Louis V. Rodriguez, is a state prisoner proceeding pro se and in forma pauperis

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with 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. Plaintiff is

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proceeding on his First Amended Complaint. (Doc. 28.) Defendants filed a motion to dismiss.

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(Doc. 52.) Plaintiff responded by filing an opposition and a motion for leave to file an amended

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complaint to which Defendants replied. (Docs. 60, 64.) On December 23, 2014, the Magistrate

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Judge recommended Defendants' motion to dismiss be granted in part and denied in part and that

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Plaintiff's motion for leave to amend be granted and allowed thirty days for the parties to file

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objections. (Doc. 66.) More than thirty days have now passed and neither side has filed

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objections.

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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

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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 on December 23, 2014, is adopted in full;

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2. Defendants’ motion to dismiss Plaintiff’s retaliation claims against Cox, Cavazos, and
Terrell for failure to state a claim is DENIED;

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3. Defendants’ motion to dismiss Plaintiff’s excessive force claims against Cavazos and
Terrell for failure to state a claim is DENIED;

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4. Defendants’ motion to dismiss Plaintiff’s excessive force claim for violation of

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Federal Rule of Civil Procedure 8(a) regarding the incident of November 3, 2010, is

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GRANTED with leave to amend and Plaintiff's request for leave to amend as stated in
his opposition is GRANTED;

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5. Defendants’ motion to dismiss Plaintiff’s excessive force claims against Cox,
Cavazos, and Terrell as barred by Heck and Balisok is DENIED;

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6. Defendants’ motion to dismiss Plaintiff’s retaliation and excessive force claims
against Defendants Cox, Cavazos, and Terrell based on qualified immunity is

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DENIED without prejudice; and

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7. within thirty (30) days from the date of service of this order, Plaintiff must either:
a.

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findings and recommendations, or

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b.

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findings and recommendations as viable; and

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notify the Court in writing that he does not wish to file a second amended
complaint and wishes to proceed only on the claims identified in the

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file a second amended complaint curing the deficiencies identified in the

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If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order.

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IT IS SO ORDERED.
Dated: February 21, 2015
SENIOR DISTRICT JUDGE

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