Bowell v. Montoya et al

Filing 52

ORDER ADOPTING 50 Findings and Recommendations; ORDER GRANTING Defendants' 48 Motion to Set Aside Court's Order and DENYING Plaintiff's 49 Motion for Reconsideration as Moot, signed by Chief Judge Lawrence J. O'Neill on 10/18/19. (Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JAMES BOWELL,

12
13
14
15

Plaintiff,
vs.
F. MONTOYA, et al.,
Defendants.

16
17

1:17-cv-00605-LJO-GSA-PC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
(ECF No. 50.)
ORDER GRANTING DEFENDANTS’
MOTION TO SET ASIDE COURT’S
ORDER AND DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION AS
MOOT
(ECF Nos. 48, 49.)

18
19
20

James Bowell (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

21

pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s First Amended Complaint

22

filed on May 3, 2018, against defendants Montoya and Carter for violation of due process under

23

the Fourteenth Amendment, and against defendants Killmer and Lopez for conspiracy to place

24

Plaintiff at risk of serious harm and failure to protect Plaintiff under the Eighth Amendment.

25

(ECF No. 16.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C.

26

§ 636(b)(1)(B) and Local Rule 302.

27

On September 12, 2019, findings and recommendations were entered, recommending that

28

Defendants’ motion to set aside the court’s order revoking Plaintiff’s in forma pauperis status be

1

GRANTED; the court’s order revoking Plaintiff’s in forma pauperis status be VACATED;

2

Plaintiff’s motion for reconsideration be DENIED as moot; the court’s order granting Plaintiff

3

leave to proceed in forma pauperis be REINSTATED; Plaintiff be GRANTED leave to proceed

4

in forma pauperis; Defendants be GRANTED twenty-one days from the date of service of this

5

order in which to file a pleading responsive to the complaint; and Plaintiff be GRANTED one

6

hundred-twenty days from the date of service of this order before discovery is opened in this

7

case. (ECF No. 50.) The parties were granted fourteen days in which to file objections to the

8

findings and recommendations. (Id.) The time for filing objections has expired, and no party

9

has filed objections or otherwise responded to the findings and recommendations.

10

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

11

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

12

court finds the findings and recommendations to be supported by the record and proper analysis.

13

Accordingly, IT IS HEREBY ORDERED that:

14

1.

15
16

are ADOPTED IN FULL;
2.

17
18

3.

The court’s order issued on May 1, 2019, revoking Plaintiff’s in forma pauperis
status (ECF No. 42), is VACATED;

4.

21
22

Defendants’ motion to set aside the court’s order revoking Plaintiff’s in forma
pauperis status (ECF No. 48), filed on August 27, 2019, is GRANTED;

19
20

The findings and recommendations (ECF No. 50), entered on September 12, 2019,

Plaintiff’s motion for reconsideration, filed on September 3, 2019 (ECF No. 49),
is DENIED as moot;

5.

23

The court’s order issued on May 16, 2017, granting Plaintiff leave to proceed in
forma pauperis in this case (ECF No. 9), is REINSTATED;

24

6.

Plaintiff is GRANTED leave to proceed in forma pauperis in this case;

25

7.

Defendants are GRANTED twenty-one days from the date of service of this order

26
27
28

in which to file a pleading responsive to the complaint;
8.

Plaintiff is GRANTED one hundred-twenty days from the date of service of this
order before discovery is opened in this case;

1

9.

The Clerk of Court is directed to serve (1) a copy of this order, (2) a copy of the

2

court’s order granting Plaintiff leave to proceed in forma pauperis (ECF No. 9),

3

and (3) a copy of Plaintiff’s application to proceed in forma pauperis (ECF No.

4

6) on:

5

(1)

6

the Financial Department, U.S. District Court, Eastern District of
California; and

7

(2)

the Director of the California Department of Corrections and

8

Rehabilitation, via the court’s electronic case filing system

9

(CM/ECF);

10
11

and
10.

This case is REFERRED back to the Magistrate Judge for further proceedings.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

IT IS SO ORDERED.
Dated:

October 18, 2019

/s/ Lawrence J. O’Neill _____
UNITED STATES CHIEF DISTRICT JUDGE