Anderson v. Virga et al

Filing 52

ORDER signed by District Judge Kimberly J. Mueller on 6/12/2017 ADOPTING IN FULL 43 Findings and Recommendations, except as modified by this Order; GRANTING 35 Motion to Dismiss; DISMISSING, with leave to amend, the excessive force claim against raised against Defendant Villasenor in the 23 First Amended Complaint; FINDING as moot, the recommendation that the plaintiff be granted thirty days to amend his complaint against Defendant Villasenor; REFERRING this matter back to the magistrate judge for further proceedings. (Michel, G.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC ZACHARY ANDERSON, 12 Plaintiff, 13 14 No. 2:15-cv-1148-KJM-EFB P v. ORDER TIM VIRGA, et al., 15 Defendants. 16 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 17 18 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On March 29, 2017, the magistrate judge filed findings and recommendations 20 21 recommending that a motion to dismiss filed by defendant Villasenor be granted and that plaintiff 22 be given leave to file a second amended complaint to clarify the basis for his excessive force 23 claim against defendant Villasenor. The findings and recommendations were served on all parties 24 and contained notice to all parties that any objections to the findings and recommendations were 25 to be filed within fourteen days. Neither party has filed objections to the findings and 26 recommendations. Plaintiff filed his second amended complaint on May 2, 2017. ECF No. 46. 27 ///// 28 ///// 1 1 The court has reviewed the file and finds the findings and recommendations to be 2 supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY 3 ORDERED that: 4 5 1. Except as modified by this order, the findings and recommendations filed March 29, 2017, are adopted in full; 6 2. Defendant Villasenor’s motion to dismiss, ECF No. 35, is granted; 7 3. The excessive force claim against defendant Villasenor raised in the first amended 8 9 complaint, ECF No. 23, is dismissed with leave to amend; 4. In view of the fact that plaintiff has filed a second amended complaint, ECF No. 46, 10 the recommendation that plaintiff be granted thirty days to amend his claim against defendant 11 Villasenor is moot; and 12 13 5. This matter is referred back to the assigned magistrate judge for further proceedings. DATED: June 12, 2017. 14 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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