Ward v. Ives et al

Filing 59

ORDER ADOPTING 58 FINDINGS AND RECOMMENDATIONS, in full, signed by Judge Garland E. Burrell, Jr. on 9/29/2014. Defendants' 44 Motion to Dismiss is GRANTED. Plaintiff's FTCA and First Amendment claims are DISMISSED with prejudice. Plaintiff is GRANTED 30 days from date Order is filed to submit a Third Amended Complaint. (Marciel, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JOHN C. WARD, 11 12 13 14 No. 2:11-cv-1657-GEB-EFB P Plaintiff, v. ORDER RICHARD IVES, et al., Defendants. 15 16 Plaintiff, a federal prisoner proceeding pro se, has filed this action alleging a 17 Federal Tort Claims Act (“FTCA”) claim and First Amendment and Eighth Amendment claims 18 under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 19 (1971). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. 21 On September 4, 2014, the Magistrate Judge filed an Order and Findings and 22 Recommendations; the findings and recommendations contained therein concern Defendants 23 United States of America, Jay Salinas, Ryan Binford, and Joe Fieber’s motion to dismiss, (ECF 24 No. 44). The findings and recommendations were served on all parties and contained notice that 25 any objections to the findings and recommendations were to be filed within fourteen days. No 26 objections to the findings and recommendations were filed. 27 28 The court has reviewed the file and finds the referenced findings and recommendations to be supported by the record and by the Magistrate Judge’s analysis. 1 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed September 4, 2014, are adopted in 4 2. Defendants’ motion to dismiss, (ECF No. 44), is granted; 5 3. Plaintiff’s FTCA and First Amendment claims are dismissed with 4. Plaintiff is granted thirty (30) days from the date on which this order is 3 6 7 full; prejudice; 8 filed to file a Third Amended Complaint addressing the deficiencies referenced in the September 9 4, 2014 findings and recommendations on the Eighth Amendment claim alleged against 10 11 Defendants Salinas, Binford, and Fieber; and 5. Plaintiff is warned that this action may be dismissed with prejudice under 12 Federal Rule of Civil Procedure 41(b) if Plaintiff fails to timely file a Third Amended Complaint. 13 Dated: September 29, 2014 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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