Rodriguez v. Beard et al

Filing 141

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/17/2019 RECOMMENDING the 15 second amended complaint be dismissed but for the claims alleging that defendants Foulk and St. Andre subjected plaintiff to a race-based lockdown on 3/17/2013, and retaliation claim against defendant Matis; and plaintiff's 26 motion to amend be denied. Referred to Judge Morrison C. England, Jr; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEAN C. RODRIGUEZ,

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No. 2: 14-cv-1049 MCE KJN P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

JEFFREY BEARD, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On March 22, 2017, the court granted defendants’ summary judgment

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motion and judgment was entered. (ECF Nos. 133, 134.) Plaintiff appealed the judgment to the

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Ninth Circuit Court of Appeals. (ECF No. 137.)

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On April 25, 2019, the Ninth Circuit Court of Appeals reversed and remanded this action

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on the grounds that the undersigned dismissed certain claims without consent from all parties.

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Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017). (ECF No. 140.) Accordingly, the

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undersigned herein recommends dismissal of those claims previously dismissed by the

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undersigned without consent of all parties.

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On September 5, 2014, the undersigned dismissed the second amended complaint but for

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the claims alleging that defendants Foulk and St. Andre subjected plaintiff to a race-based

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lockdown on March 17, 2013, and the retaliation claim against defendant Matis. (ECF No. 18.)
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For the reasons stated in the September 5, 2014 order, the undersigned herein recommends

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dismissal of the second amended complaint but for the claims alleging that defendants Foulk and

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St. Andre subjected plaintiff to a race-based lockdown on March 17, 2013, and the retaliation

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claim against defendant Matis.

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On January 5, 2015, the undersigned denied plaintiff’s motion to amend. (ECF No. 30.)

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In an abundance of caution, the undersigned herein recommends that plaintiff’s motion to amend

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(ECF No. 26) be denied for the reasons stated in the January 5, 2015 order.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. The second amended complaint be dismissed but for the claims alleging that

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defendants Foulk and St. Andre subjected plaintiff to a race-based lockdown on March 17, 2013,

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and the retaliation claim against defendant Matis;

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2. Plaintiff’s motion to amend (ECF No. 26) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 17, 2019

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Rod1049.fr

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