Tran v. Junious et al

Filing 41

ORDER Adopting 35 Findings and Recommendations, signed by District Judge Dale A. Drozd on 4/4/17. 27 Motion to Dismiss Denied. Matter Referred Back to Magistrate Judge. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BINH TRAN,

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No. 1:14-cv-01320-DAD-EPG
Plaintiff,

v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

E. SMITH,
(Doc. Nos. 27, 35)
Defendant.

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Plaintiff Binh Tran is a state prisoner proceeding pro se and in forma pauperis with this

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civil rights action filed pursuant to 42 U.S.C. § 1983 and with an attendant state law claim for

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common law negligence. This case now proceeds on plaintiff’s second amended complaint, filed

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on February 17, 2015, against defendant E. Smith on plaintiff’s Eighth Amendment and

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negligence claims. (Doc. Nos. 13, 21.) The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 19, 2016, defendant Smith filed a motion to dismiss for failure to state a claim.

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(Doc. No. 27.) On September 26, 2016, plaintiff filed an opposition to the motion. (Doc. No.

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29.) On October 4, 2016, defendant filed a reply. (Doc. No. 30.)

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On November 7, 2016, Magistrate Judge Erica P. Grosjean entered an order denying
defendant Smith’s motion to dismiss. (Doc. No. 31.) On November 22, 2016, defendant Smith
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filed a motion for reconsideration of that order by the district court. (Doc. No. 32.) On

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November 23, 2016, Magistrate Judge Grosjean vacated the November 7, 2016 order (Doc. No.

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34), and on November 28, 2016, entered findings and recommendations recommending that

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defendant Smith’s motion to dismiss be denied and that defendant Smith’s motion for

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reconsideration also be denied. (Doc. No. 35). The findings and recommendations provided the

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parties with an opportunity to file objections to the findings and recommendations within thirty

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days. (Id.) On December 20, 2016, defendant Smith filed objections to the findings and

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recommendations. (Doc. No. 38.)1

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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including the parties’ responses thereto, the court finds the findings and recommendations to be

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supported by the record and proper analysis.

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Accordingly,

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1. The November 28, 2016 findings and recommendations (Doc. No. 35) are adopted in

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full;

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2. Defendant Smith’s motion to dismiss (Doc. No. 27) is denied;

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3. Defendant Smith’s motion for reconsideration (Doc. No. 32) is denied as having been

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rendered moot by this order; and

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4. This case is referred back to the magistrate judge for further proceedings consistent

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with this order.
IT IS SO ORDERED.

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Dated:

April 4, 2017
UNITED STATES DISTRICT JUDGE

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On December 14, 2016, plaintiff filed an “opposition” to defendant’s motion to dismiss. (Doc.
No. 37.) The court will construe this document as a response to defendant’s objections.
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