Boudreaux v. Cate, et al.

Filing 42

ORDER adopting 40 FINDINGS AND RECOMMENDATIONS signed by District Judge Garland E. Burrell, Jr on 3/7/17: Defendants' Motion to Dismiss (ECF No. 28) is granted in part and denied in part. Within thirty days from the date of this order, plaintiff shall file a Third Amended Complaint. Plaintiff's October 14, 2016 Motion to Stay (ECF No. 35) is denied as moot and Defendants' Motion to Strike (ECF No. 37) is denied. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THADDEUS BOUDREAUX,

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Plaintiff,

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No. 2:14-cv-0997 GEB DB P

v.

ORDER

MATTHEW CATE, et al.,

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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.
On February 6, 2017, 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. Defendants have filed

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objections to the findings and recommendations.
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 February 6, 2017 (ECF No. 40) are adopted in

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full;
2. Defendants’ Motion to Dismiss (ECF No. 28) is granted in part and denied in part;

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a. Plaintiff's claims against defendants in their official capacities are dismissed;

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b. Plaintiff’s claims against defendants for violation of the Eighth Amendment are

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dismissed without prejudice; and

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c. Each defendant’s motion to dismiss is denied with respect to plaintiff’s equal

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protection claims and with respect to each defendant’s assertion of qualified

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immunity.
3. Within thirty days from the date of this order, plaintiff shall file a Third Amended
Complaint;
4. If plaintiff fails to file a timely Third Amended Complaint, this case will proceed on
plaintiff’s equal protection claims set out in the Second Amended Complaint; and

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4. Plaintiff’s October 14, 2016 Motion to Stay (ECF No. 35) is denied as moot: and

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5. Defendants’ Motion to Strike (ECF No. 37) is denied.

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Dated: March 7, 2017

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