King v. Villegas et al

Filing 118

ORDER ADOPTING 115 Findings and Recommendations ORDER DENYING Defendants' 106 Motion for Judgment on the Pleadings and GRANTING IN PART Plaintiff's 108 Motion to Leave to Amend signed by District Judge Anthony W. Ishii on 04/26/2023.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY LEE KING,

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Plaintiff,

No. 1:17-cv-00676-AWI-EPG (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

v.
(ECF Nos. 106, 108, & 115)
R. VILLEGAS and P. CRUZ,
Defendants.

ORDER DENYING DEFENDANTS’
MOTION FOR JUDGMENT ON THE
PLEADINGS AND GRANTING IN PART
PLAINTIFF’S MOTION FOR LEAVE TO
AMEND

Jerry King (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with

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this civil rights action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United

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

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On May 18, 2022, Defendants filed a motion for judgment on the pleadings, arguing that

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Plaintiff’s claims in this case are barred because they contradict the facts referred to in Plaintiff’s

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nolo contendere (no contest) plea to violating California Penal Code § 69 against two victims in

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state court. (ECF No. 106). On May 31, 2022, Plaintiff filed a motion for leave to amend, asking

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to add additional defendants and claims related to his medical care following the injuries from the

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incident at issue in this case. (ECF No. 108). On November 17, 2022, the assigned magistrate

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judge entered findings and recommendations, recommending that:

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1. Defendants’ motion for judgment on the pleadings (ECF No. 106) be DENIED;
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2. Plaintiff’s motion for leave to amend (ECF No. 108) be GRANTED in part; and
3. Plaintiff’s lodged amended complaint be filed in a separate case and Plaintiff’s
Eighth Amendment claims for deliberate indifference to his medical needs against
defendants Registered Nurse Gant and Licensed Vocational Nurse Vitto proceed in
that other case, subject to screening.
(ECF No. 115, p. 18).
The parties were provided an opportunity to file objections to the findings and
recommendations. On November 30, 2022, Defendants filed their objections. (ECF No. 116).
Plaintiff did not object, but on December 12, 2022, he filed his reply to Defendants’ objections
(ECF No. 117).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
Court finds the findings and recommendations to be supported by the record and proper analysis.
Accordingly, IT IS ORDERED that:
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full;
2.

Defendants’ motion for judgment on the pleadings (ECF No. 106) is DENIED;

3.

Plaintiff’s motion for leave to amend (ECF No. 108) is GRANTED in part;1

4.

Plaintiff’s lodged amended complaint shall be filed in a separate case and

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Plaintiff’s Eighth Amendment claims for deliberate indifference to his medical

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needs against defendants Registered Nurse Gant and Licensed Vocational Nurse

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The findings and recommendations issued on November 17, 2022, are adopted in

Vitto proceed in that other case, subject to screening; and
5.

The Clerk of Court is directed to:

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a. Open a new § 1983 action for Plaintiff.

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b. Assign a random magistrate judge to the action.

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c. File and docket a copy of the following in the newly opened action: Plaintiff’s

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original complaint (ECF No. 1); the order granting Plaintiff’s application to

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The Court is only granting Plaintiff’s motion for leave to amend insofar as it is attempting to add Eighth
Amendment claims against Grant and Vitto for failing to provide medical care after the alleged excessive force
incident. To the extent that Plaintiff is attempting to add additional claims against Defendants, Plaintiff’s motion is
denied.

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proceed in forma pauperis (ECF No. 6); Plaintiff’s Amended Complaint (ECF

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No. 92); the findings and recommendations issued on November 17, 2022

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(ECF No. 115); and this order.

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IT IS SO ORDERED.
Dated: April 26, 2023
SENIOR DISTRICT JUDGE

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