Lopez v. Allison et al

Filing 41

ORDER ADOPTING 40 FINDINGS AND RECOMMENDATIONS; ORDER DENYING 26 Defendants' Motion to Dismiss; and ORDER Directing Defendants to File an Answer to Plaintiff's Second Amended Complaint Within Twenty-One (21) Days signed by District Judge Dale A. Drozd on 3/9/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ADAM LOPEZ,

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No. 1:13-cv-02010-DAD-JLT
Plaintiff,

v.
K. ALLISON, et al.,

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Defendants.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS DENYING MOTION
TO DISMISS ON CLAIM / ISSUE
PRECLUSION GROUNDS, AND
DIRECTING DEFENDANTS TO FILE AN
ANSWER
(Doc. Nos. 26, 40)

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Plaintiff, Adam Lopez, is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action under 42 U.S.C. § 1983, filed on December 9, 2013. (Doc. Nos. 1, 10.) The

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matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On January 28, 2016, the assigned magistrate judge filed findings and recommendations

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recommending that defendants’ motion to dismiss plaintiff’s complaint on collateral estoppel/res

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judicata grounds be denied. Those findings and recommendations were served on the parties and

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contained notice to the parties that objections to the findings and recommendations were to be

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filed within twenty-one days. (Doc. No. 40.) Despite the lapse of more than the allotted time,

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neither side has filed objections to the findings and recommendations. Local Rule 304(b), (d).
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the 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 legal analysis. The assigned

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magistrate judge appropriately concluded that in arguing plaintiff is precluded from prosecuting

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this action due to the granting of summary judgment in favor of the defendants in Martinez v.

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Allison, et al., 1:11-cv-00293-LJO-DLB (E.D. Cal.), defendants have, at the very least, failed to

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establish the required privity exists between plaintiff and the plaintiff in Martinez. (Doc. No. 40

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at 5-6.) Absent that showing, their motion to dismiss must be denied.

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For the reasons set forth above:

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1. The findings and recommendations filed on January 28, 2016 are ADOPTED IN

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FULL;

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2. Defendants’ motion to dismiss (Doc. No. 26) filed on August 18, 2015 seeking

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dismissal on grounds of claim or issue preclusion/collateral estoppel/res judicata is

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DENIED; and

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3. Defendants are directed to file an answer to plaintiff’s second amended complaint

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(Doc. No. 20) within twenty-one (21) days of service of this order.

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IT IS SO ORDERED.
Dated:

March 9, 2016
UNITED STATES DISTRICT JUDGE

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