Allen v. Virga et al

Filing 43

ORDER ADOPTING 37 FINDINGS AND RECOMMENDATIONS signed by District Judge Troy L. Nunley on 9/13/13. Defendants' 14 and 22 Motions to Dismiss are DENIED with prejudice on the ground that the complaint was barred by the stature of limitatio ns; Virga's motion to dismiss for failure to state a claim is GRANTED, but Plaintiff is granted leave to amend within 28 days. Defendants' motion to dismiss on grounds of qualified immunity is DENIED but without prejudice; Plaintiff's claims for prospective injunctive relief is DISMISSED as moot; this matter proceeds only on Plaintiff's claim for damages.(Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN ALLEN,

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No. 2:12-cv-1583 TLN AC
Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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

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

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On June 12, 2013, the magistrate judge filed findings and recommendations herein which

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

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findings and recommendations were to be filed within twenty-one days. Neither party has filed

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objections to the findings and recommendations.

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The court has reviewed the file and finds the findings and recommendations to be

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supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY

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ORDERED that:

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1. The findings and recommendations filed June 12, 2013, are adopted in full;

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2. Defendants’ motions to dismiss (ECF Nos. 14 and 22) are denied with prejudice on the

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ground that the complaint is barred by the statute of limitations;
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3. Defendant’s Virga’s motion to dismiss for failure to state a claim (ECF No. 14) is
granted, but plaintiff is granted leave to amend within twenty-eight days;
4. Plaintiff is granted leave to amend to state a claim under the Religious Land Use and

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Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1, also within twenty-

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eight days of the filing date of this order;

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5. Defendants’ motion to dismiss on grounds of qualified immunity is denied but without
prejudice;
6. Plaintiff’s claims for prospective injunctive relief as to both defendants is dismissed as
moot; and
7. This matter proceeds only on plaintiff’s claim for damages.

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Dated: September 13, 2013

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Troy L. Nunley
United States District Judge

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/alle1583.801

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