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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC ZACHARY ANDERSON,

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Plaintiff,

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No. 2:15-cv-1148-KJM-EFB P

v.

ORDER

TIM VIRGA, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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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

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recommending that a motion to dismiss filed by defendant Villasenor be granted and that plaintiff

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be given leave to file a second amended complaint to clarify the basis for his excessive force

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claim against defendant Villasenor. The findings and recommendations were served on all parties

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and contained notice to all parties that any objections to the findings and recommendations were

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to be filed within fourteen days. Neither party has filed objections to the findings and

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recommendations. Plaintiff filed his second amended complaint on May 2, 2017. ECF No. 46.

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The court has reviewed the file and finds the findings and recommendations to be

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supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY

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ORDERED that:

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1. Except as modified by this order, the findings and recommendations filed March 29,
2017, are adopted in full;

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2. Defendant Villasenor’s motion to dismiss, ECF No. 35, is granted;

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3. The excessive force claim against defendant Villasenor raised in the first amended

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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,

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the recommendation that plaintiff be granted thirty days to amend his claim against defendant

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Villasenor is moot; and

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5. This matter is referred back to the assigned magistrate judge for further proceedings.
DATED: June 12, 2017.

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UNITED STATES DISTRICT JUDGE

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