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)
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
EASTERN DISTRICT OF CALIFORNIA
7
8
9
LOUIS V. RODRIGUEZ,
Plaintiff,
10
11
12
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.,
13
(Docs. 52, 60, 66)
Defendants.
14
15
16
Plaintiff, Louis V. Rodriguez, is a state prisoner proceeding pro se and in forma pauperis
17
with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United
18
States Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. Plaintiff is
19
proceeding on his First Amended Complaint. (Doc. 28.) Defendants filed a motion to dismiss.
20
(Doc. 52.) Plaintiff responded by filing an opposition and a motion for leave to file an amended
21
complaint to which Defendants replied. (Docs. 60, 64.) On December 23, 2014, the Magistrate
22
Judge recommended Defendants' motion to dismiss be granted in part and denied in part and that
23
Plaintiff's motion for leave to amend be granted and allowed thirty days for the parties to file
24
objections. (Doc. 66.) More than thirty days have now passed and neither side has filed
25
objections.
26
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
27
de novo review of this case. Having carefully reviewed the entire file, the Court finds the
28
Findings and Recommendations to be supported by the record and by proper analysis.
1
1
Accordingly, IT IS HEREBY ORDERED that:
2
1. The Findings and Recommendations, issued on December 23, 2014, is adopted in full;
3
2. Defendants’ motion to dismiss Plaintiff’s retaliation claims against Cox, Cavazos, and
Terrell for failure to state a claim is DENIED;
4
5
3. Defendants’ motion to dismiss Plaintiff’s excessive force claims against Cavazos and
Terrell for failure to state a claim is DENIED;
6
7
4. Defendants’ motion to dismiss Plaintiff’s excessive force claim for violation of
8
Federal Rule of Civil Procedure 8(a) regarding the incident of November 3, 2010, is
9
GRANTED with leave to amend and Plaintiff's request for leave to amend as stated in
his opposition is GRANTED;
10
11
5. Defendants’ motion to dismiss Plaintiff’s excessive force claims against Cox,
Cavazos, and Terrell as barred by Heck and Balisok is DENIED;
12
13
6. Defendants’ motion to dismiss Plaintiff’s retaliation and excessive force claims
against Defendants Cox, Cavazos, and Terrell based on qualified immunity is
14
DENIED without prejudice; and
15
16
7. within thirty (30) days from the date of service of this order, Plaintiff must either:
a.
17
findings and recommendations, or
18
b.
19
findings and recommendations as viable; and
21
23
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
20
22
file a second amended complaint curing the deficiencies identified in the
8.
If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order.
24
25
26
IT IS SO ORDERED.
Dated: February 21, 2015
SENIOR DISTRICT JUDGE
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?