Atcherley v. Hanna, et al

Filing 42

ORDER signed by Judge Kimberly J. Mueller on 9/29/14 ADOPTING IN FULL 41 Findings and Recommendations; DENYING AS UNNECESSARY 28 Motion to Amend the Complaint; DENIED AS MOOT 30 Motion for Service of First Amended Complaint; GRANTING IN PART AND DENYING IN PART 31 Motion to Dismiss as follows: the motion to dismiss plaintiff's ADA and RA claims against Defendants Hanna, Gricewich and Owens in their individual capacities is granted without leave to amend; the motion to dismiss p laintiff's retaliation claim against Defendants Hanna and Owens is granted without prejudice; the motion to dismiss plaintiff's requests for monetary damages against defendants in their official capacities is granted without leave to ame nd; the motion to dismiss the ADA and RA claims is denied. Plaintiff's 36 Motion to Compel is DENIED AS MOOT; 39 Motion for Leave to File a Second Amended Complaint is GRANTED. 37 Motion for Judicial Notice is DENIED; and Plaintiff's 40 Request for Service of the Second Amended Complaint is referred back to the magistrate judge. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILBER ATCHERLEY,

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No. 2:13-cv-0576 KJM AC P

Plaintiff,

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v.

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J. HANNA, 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 as provided

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

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On June 26, 2014, the magistrate judge filed findings and recommendations, which were

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

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

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to the findings and recommendations.

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The court presumes that any findings of fact are correct. See Orand v. United States, 602

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F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed

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the file, the court finds the findings and recommendations to be supported by the record and by

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the proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed June 26, 2014, are adopted in full;

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2. Plaintiff’s motion for leave to file a first amended complaint (ECF No. 28) is denied as

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unnecessary;

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3. Plaintiff’s motion for service of the first amended complaint (ECF No. 30) is denied as
moot;
4. Defendants’ motion to dismiss (ECF No. 31) the first amended complaint is granted in
part and denied in part as follows:

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a. The motion to dismiss plaintiff’s ADA and RA claims against Defendants

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Hanna, Gricewich and Owens in their individual capacities is granted without leave to amend;

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b. The motion to dismiss plaintiff’s retaliation claim against Defendants Hanna

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and Owens is granted without prejudice;

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c. The motion to dismiss plaintiff’s requests for monetary damages against
defendants in their official capacities is granted without leave to amend;

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d. The motion to dismiss the ADA and RA claims is denied;
5. Plaintiff’s motion for leave to file a second amended complaint (ECF No. 39) is
granted;
6. Plaintiff’s motion to compel the CDCR to provide service addresses (ECF No. 36) is
denied as moot;

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7. Plaintiff’s motion for judicial notice (ECF No. 37) is denied; and

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8. Plaintiff’s request for service of the second amended complaint (ECF No. 40) is

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referred back to the magistrate judge.

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DATED: September 29, 2014.

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UNITED STATES DISTRICT JUDGE

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