Murillo v. Holland et al

Filing 51

ORDER Adopting 46 FINDINGS AND RECOMMENDATIONS to GRANT IN PART Defendants' 27 Motion to Dismiss; GRANTING Plaintiff's 48 Motion to Amend; and ORDERING FILING of Plaintiff's Lodged Complaint signed by Chief Judge Lawrence J. O'Neill on 12/19/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOAQUIN MURILLO,

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Plaintiff,
v.
K. HOLLAND, et al.,
Defendants.

CASE NO. 1:15-cv-00266-LJO-BMK
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO GRANT IN PART
DEFENDANTS’ MOTION TO DISMISS;
GRANTING PLAINTIFF’S MOTION TO
AMEND; AND ORDERING FILING OF
PLAINTIFF’S LODGED COMPLAINT
(ECF Nos. 46, 27, 48 & 50)

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Plaintiff is proceeding pro se and in forma pauperis in this civil rights action
brought pursuant to 42 U.S.C. § 1983. Plaintiff complains that while he was housed in
administrative segregation at the California Correctional Institution in Tehachapi,
California, guards used a metal wand to make a loud noise in each prison cell every
thirty minutes, a procedure Plaintiff alleges amounts to “torture” because the constant
loud noise causes sleep deprivation, fatigue, stress, anxiety, and depression.
(Complaint, ECF No. 1 at 3.) The matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 302 of the United States District
Court for the Eastern District of California.

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On

September

12,

2016,

the

Magistrate

Judge

issued

Findings

and

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Recommendations (F&Rs) to grant in part Defendants’ motion to dismiss. (ECF No. 46.)

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Specifically, the F&Rs recommend (1) dismissal of Plaintiff’s state law negligence and

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fraud claims for failure to comply with the California Government Claims Act;

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(2) dismissal of Plaintiff’s federal claims against Defendants in their official capacities;

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(3) dismissal of Plaintiff’s federal claims for injunctive relief as moot, in light of Plaintiff’s

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recent transfer to Kern Valley State Prison; and (4) that Plaintiff’s remaining federal

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claims for damages against Defendants be allowed to proceed. The F&Rs did not

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include any recommendation as to whether leave to amend should be.

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Plaintiff timely filed objections to the F&Rs (ECF No. 47), and Defendant filed a

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response to those objections. (ECF No. 47.) In addition, Plaintiff filed a request for leave

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to amend his complaint (ECF No. 47), along with a lodged, proposed amended

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complaint. (ECF No. 50.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has

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

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Court finds the F&Rs to be supported by the record and by proper analysis. Plaintiff’s

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objections focus on mootness of the injunctive relief claim. The F&Rs correctly articulate

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the applicable rule: “When an inmate has been transferred to another prison and there is

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no reasonable expectation nor demonstrated probability that he will again be subjected

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to the prison conditions from which he seeks injunctive relief, the claim for injunctive

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relief should be dismissed as moot.” Flowers v. Ahern, 650 F. Supp. 2d 988, 991 (N.D.

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Cal. 2009). Plaintiff’s present Complaint does not allege any facts that would give rise to

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a reasonable expectation that Plaintiff would be subjected to the noise-making policy at

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his current place of incarceration, even if he were placed in administrative segregation

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there.

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As to Plaintiff’s request for leave to amend, such leave is to be given freely when

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justice so requires. Fed. R. Civ. P. 15(2). To the extent that the pleadings can be cured

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by the allegation of additional facts, a plaintiff should be afforded leave to amend. Cook,
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Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990)

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(citations omitted). Here, it appears that Plaintiff’s proposed amended complaint

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attempts to address some of the issues raised in the F&Rs in ways that are not obviously

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futile. Accordingly, Plaintiff’s request for leave to amend is GRANTED.

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CONCLUSION AND ORDER

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1. The Court adopts in full the findings and recommendations filed September

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12, 2016 (ECF No. 46);

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2. Defendants’ motion to dismiss (ECF No. 27) is GRANTED IN PART;

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3. Plaintiff’s motion to amend (ECF No. 48) is GRANTED;
4. The Clerk of Court is directed to file Plaintiff’s lodged amended complaint

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(ECF No. 50); and

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5. Defendants shall have 30 days from electronic service of this order to file a

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responsive pleading or appropriate motion regarding the amended

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complaint;

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

December 19, 2016

UNITED STATES CHIEF DISTRICT JUDGE
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