Moncrief v. California Department of Corrections and Rehabiliation et al

Filing 45

ORDER adopting 42 FINDINGS AND RECOMMENDATIONS signed by Chief Judge Morrison C. England, Jr on 4/17/14 GRANTING in part and DENYING in part 35 Motion to Dismiss. The second amended complaint shall proceed solely on counts 4, 5 and 7-9. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN PHILIP MONCRIEF,

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No. 2:12-cv-0414 MCE AC P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding through counsel, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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

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On March 25, 2014, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) 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 the findings and recommendations to be supported by the record and by proper

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analysis.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed March 25, 2014, are adopted in full;

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2. The motion to dismiss (ECF No. 35) is granted without further leave to amend as to the

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following claims and defendants:

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a. The ADA and RA claims against the CDCR (Counts 1 and 2);

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b. The due process claim alleged in Count 3;

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c. The Eighth Amendment claims against Defendant Grounds based on his

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personal participation; and

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d. Claim 6 against the CDCR for violation of Cal. Civ. Code § 54 et seq.;

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3. The motion to dismiss is granted without prejudice as to Defendant Swarthout;

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4. The motion to dismiss is denied as to:

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a. The Eighth Amendment claims (Counts 4 and 5) against Defendant Grounds for

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his failure to train; and,

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b. The state law claims alleged in Counts 7-9; and

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5. The Second Amended Complaint shall proceed solely on Counts 4 and 5 (the Eighth

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Amendment claims) and Counts 7-9 (the negligence and emotional distress claims) against

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Defendants Grounds and Does 1-50 pending further discovery and plaintiff’s anticipated motion

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to amend the complaint to identify the Doe Defendants.

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Dated: April 17, 2014

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