Furnace v. Gipson et al
Filing
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ORDER ADOPTING 63 Findings and Recommendation to: (1) Grant Defendants' 51 Motion to Dismiss; and (2) GRANT Plaintiff's 57 Motion to Amend; ORDER DIRECTING Defendants to Respond to Third Amended Complaint, signed by Chief Judge Lawrence J. O'Neill on 11/17/16. Twenty-One Day Deadline. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EDWARD T. FURNACE,
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Plaintiff,
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CASE NO. 1:14-cv-00814-LJO-MJS (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATION TO:
v.
CONNIE GIPSON, et al.,
(1) GRANT DEFENDANTS’ MOTION TO
DISMISS; AND
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(2) GRANT PLAINTIFF’S MOTION TO
AMEND
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(ECF No. 63)
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ORDER DIRECTING DEFENDANTS TO
RESPOND TO THIRD AMENDED
COMPLAINT
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Defendants.
TWENTY-ONE DAY DEADLINE
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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed
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pursuant to 42 U.S.C. § 1983. The case proceeded on Plaintiff’s second amended
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complaint (“SAC”) against Defendants Gipson, Kimbrell, Swift, Allen, Robicheaux,
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Graves, and Sexton for violating the free exercise clause of the First Amendment by
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denying Plaintiff’s requests for a religious name change and to purchase and possess
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religious property. (ECF No. 24.)
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On February 26, 2016, Defendants filed a motion to dismiss Plaintiff’s SAC on the
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grounds that Plaintiff’s complaint, which sought only injunctive relief, had been rendered
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moot by his transfer to a different institution. (ECF No. 51.) On May 18, 2016, Plaintiff
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filed a motion seeking leave to amend and lodged a proposed Third Amended Complaint
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(“TAC”) with the Court. (ECF Nos. 57 & 58.) Plaintiff’s proposed TAC was substantially
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similar to his SAC, with the addition of a prayer for monetary relief.
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On September 21, 2016, the Magistrate Judge assigned to the case issued
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findings and recommendations to grant Defendants’ motion to dismiss Plaintiff’s SAC.
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(ECF No. 63.) The Magistrate Judge also recommended granting Plaintiff’s motion for
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leave to amend and screened Plaintiff’s TAC, finding it stated cognizable First
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Amendment free exercise of religion claims against Defendants Gipson, Kimbrell, Swift,
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and Allen for their denial of Plaintiff’s name change request, and against Gipson,
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Robicheaux, Graves, and Sexton for their denial of Plaintiff’s religious property request.
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Id. The Magistrate Judge thus ordered that Plaintiff’s lodged TAC be filed. Id. The parties
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were granted fourteen days to file their objections to the Magistrate Judge’s findings and
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recommendations. No objections were filed and the time for doing so has passed.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,
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the Court has conducted a de novo review of this case. Having carefully reviewed the
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entire file, the Court finds the findings and recommendations to be supported by the
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record and by proper analysis.
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Accordingly, it is HEREBY ORDERED THAT:
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1.
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63) are adopted in full;
2.
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The Findings and Recommendations filed September 21, 2016 (ECF No.
Defendants’ motion to dismiss Plaintiff’s Second Amended Complaint (ECF
No. 51) is GRANTED;
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Plaintiff’s motion for leave to file a Third Amended Complaint (ECF No. 57)
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is GRANTED;
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Plaintiff shall be permitted to proceed on his Third Amended Complaint’s
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First Amendment free exercise of religion claims against Defendants
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Gipson, Kimbrell, Swift, and Allen for their denial of Plaintiff’s name change
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request, and against Gipson, Robicheaux, Graves, and Sexton for their
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denial of Plaintiff’s religious property request (ECF No. 58);
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5.
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The remaining non-cognizable claims in Plaintiff’s Third Amended
Complaint are DISMISSED with prejudice; and
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The above-named Defendants are DIRECTED to file a responsive pleading
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or motion to Plaintiff’s Third Amended Complaint within twenty-one (21)
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days of this Court’s order.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill _____
November 17, 2016
UNITED STATES CHIEF DISTRICT JUDGE
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