Hodge v. Gonzales et al

Filing 28

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 27 ; ORDER Regarding Defendants' Motion to Dismiss 17 , Plaintiff's Motion for Leave to Amend First Amended Complaint 24 , and Plaintiff's Motion for Scheduling Order 23 , signed by District Judge Anthony W. Ishii on 3/29/17: This matter is referred back to the assigned Magistrate Judge for proceedings consistent with this order. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK HODGE,

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Plaintiff,

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v.
J. GONZALES, et al.,

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Defendants.

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Case No. 1:15-cv-01618-AWI-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
(Doc. No. 27)
ORDER REGARDING DEFENDANTS’
MOTION TO DISMISS, (Doc. No. 17),
PLAINTIFF’S MOTION FOR LEAVE TO
AMEND FIRST AMENDED COMPLAINT,
(Doc. No. 24), AND PLAINTIFF’S
MOTION FOR SCHEDULING ORDER,
(Doc. No. 23)

Plaintiff Mark Hodge (“Plaintiff”) 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. This action currently proceeds

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on Plaintiff’s first amended complaint against Defendants Gonzalez and Flores for

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unconstitutional conditions of confinement, against Defendant Gonzalez for excessive force, and

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against Defendant Flores for failure to protect Plaintiff, all in violation of the Eighth

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Amendment. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C.

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§ 636(b)(1)(B) and Local Rule 302.1
On March 9, 2017, the assigned Magistrate Judge filed a findings and recommendations

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(“F&R”), recommending that Defendants’ motion to dismiss pursuant to Federal Rule of Civil

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Defendant Gonzalez was erroneously sued as “Gonzales.”

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Procedure 12(b)(6) be granted in part and denied in part. (Doc. No. 27.) Specifically, Defendants

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moved to dismiss this action in its entirety on the grounds that the claims in Plaintiff’s first

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amended complaint are barred by the holdings of Heck v. Humphrey, 512 U.S. 477, 480 (1994),

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and Edwards v. Balisok, 520 U.S. 641, 643 (1997). The Magistrate Judge recommended that

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Plaintiff’s Eighth Amendment excessive force claim against Defendant Gonzalez, and failure to

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protect claim against Defendant Flores, be dismissed without prejudice as Heck barred, but that

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the action continue to proceed on Plaintiff’s claim against Defendants Gonzalez and Flores for

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unconstitutional conditions of confinement in violation of the Eighth Amendment. The

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Magistrate Judge also recommended that Plaintiff’s motion for leave to amend the first amended

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complaint and motion for a scheduling order both be denied.
The parties were provided an opportunity to file objections to the findings and

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recommendations within fourteen days. More than fourteen days have passed, and no objections

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were filed.
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, the

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Court finds that the F&R is supported by the record and proper analysis.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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2017 (Doc. No. 27), are ADOPTED IN FULL;

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Defendants’ motion to dismiss, filed May 10, 2016 (Doc. No. 17), is GRANTED IN
PART and DENIED IN PART;

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The findings and recommendations filed by the assigned magistrate judge on March 9,

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Plaintiff’s Eighth Amendment excessive force claim against Defendant Gonzalez, and

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failure to protect claim against Defendant Flores, are DISMISSED, without prejudice, as

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Heck-barred;

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4.

Plaintiff’s motion for leave to amend the first amended complaint, filed August 15, 2016
(Doc. No. 24), is DENIED;
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Plaintiff’s motion for scheduling order, filed July 25, 2016 (Doc. No. 23), is DENIED;

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This action proceeds only on Plaintiff’s claim against Defendants Gonzalez and Flores

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for unconstitutional conditions of confinement in violation of the Eighth Amendment;

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and

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This matter is referred back to the assigned Magistrate Judge for proceedings consistent
with this order.

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IT IS SO ORDERED.

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Dated: March 29, 2017

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SENIOR DISTRICT JUDGE

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