Boudreaux v. Cate, et al.
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:14-cv-0997 GEB DB P
MATTHEW CATE, et al.,
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 6, 2017, the magistrate judge filed findings and recommendations herein
which were served on all parties and which contained notice to all parties that any objections to
the findings and recommendations were to be filed within fourteen days. Defendants have filed
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
court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
court finds the findings and recommendations to be supported by the record and by proper
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed February 6, 2017 (ECF No. 40) are adopted in
2. Defendants’ Motion to Dismiss (ECF No. 28) is granted in part and denied in part;
a. Plaintiff's claims against defendants in their official capacities are dismissed;
b. Plaintiff’s claims against defendants for violation of the Eighth Amendment are
dismissed without prejudice; and
c. Each defendant’s motion to dismiss is denied with respect to plaintiff’s equal
protection claims and with respect to each defendant’s assertion of qualified
3. Within thirty days from the date of this order, plaintiff shall file a Third Amended
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
4. Plaintiff’s October 14, 2016 Motion to Stay (ECF No. 35) is denied as moot: and
5. Defendants’ Motion to Strike (ECF No. 37) is denied.
Dated: March 7, 2017
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