Campbell v. P. Dickey
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and DENYING Defendant's Motion to Dismiss 40 , 45 , 46 , signed by Chief Judge Lawrence J. O'Neill on 8/24/2018: 14-Day Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY TYRONE CAMPBELL, SR.,
Plaintiff,
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v.
P. DICKEY,
Case No. 1:14-cv-00918-LJO-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANT’S MOTION TO DISMISS
(Doc. Nos. 40, 45, 46)
Defendant.
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Plaintiff Anthony Tyrone Campbell, Sr., is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a
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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On August 3, 2016, the Court dismissed this action for failing to state a claim upon which
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relief may be granted. (Doc. No. 18.) Judgment was entered that same day. (Doc. No. 19.)
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Plaintiff appealed. (Doc. No. 20.)
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On March 17, 2017, the Ninth Circuit affirmed in part, reversed in part, and remanded this
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action. (Doc. No. 26.) The Ninth Circuit found that all claims had been properly dismissed
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except for Plaintiff’s equal protection claim against Defendant Dickey. The Ninth Circuit held
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that such dismissal was premature because “the allegation that Dickey assigned Campbell to a
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cell with a gang-affiliated inmate based on Campbell’s race, liberally construed, is ‘sufficient to
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warrant ordering [defendant] to file an answer.’” (Id. at 2) (quoting Wilhelm v. Rotman, 680 F.3d
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1113, 1116 (9th Cir. 2012)). See also Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003)
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(plaintiff need only allege that defendant acted at least in part based on a plaintiff’s protected
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status). The Ninth Circuit issued its mandate on April 10, 2017. (Doc. No. 26.)
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On October 9, 2017, Defendant Dickey filed a motion to dismiss under Federal Rule of
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Civil Procedure 12(b)(6), arguing that Plaintiff had failed to state a cognizable claim, that his
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claim is barred by the favorable termination rule as articulated in Heck v. Humphrey, 512 U.S.
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477 (1994), and that Defendant is entitled to qualified immunity. On August 9, 2018, the
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assigned Magistrate Judge recommended that Defendant’s motion be denied, in its entirety.
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(Doc. No. 45.) The findings and recommendations was served on the parties and contained notice
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that any objections to the findings and recommendations were to be filed within fourteen (14)
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days. Defendant timely filed objections on August 23, 2018. (Doc. No. 46.)
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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. The
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objections do not provide a basis upon which to reject the findings and recommendations.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The findings and recommendations issued on August 9, 2018, are adopted in full;
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2.
Defendant’s motion to dismiss, filed on October 9, 2017, is denied; and
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3.
Defendant shall file an answer within fourteen (14) days of this order. Fed. R. Civ.
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P. 12(a)(4)(A).
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill _____
August 24, 2018
UNITED STATES CHIEF DISTRICT JUDGE
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