Harris v. Macomber et al

Filing 112

ORDER signed by District Judge Troy L. Nunley on 7/7/21 ADOPTING in full 106 Findings and Recommendations. Plaintiff's due process claim is DISMISSED without leave to amend. Defendants are DIRECTED to respond to the Second Amended Complaint. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GRADY HARRIS,

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No. 2:16-cv-0830 TLN DB

Plaintiff,
v.

ORDER

JEFF MACOMBER, et al.,

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Defendants.

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Plaintiff Grady Harris (“Plaintiff”), a state prisoner proceeding pro se, has filed this civil

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

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 10, 2021, the magistrate judge filed findings and recommendations herein which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. (ECF No. 106.) Plaintiff

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and Defendants Calderon, Cervantes, Fong, Fuller, Munoz, Rose, Thompson, and Williamson

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(collectively, “Defendants”) have filed objections to the findings and recommendations. (ECF

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Nos. 107, 110.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this

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Court has conducted a de novo review of this case. See McDonnell Douglas Corp. v. Commodore

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Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see
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also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). Having reviewed the file under the

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applicable legal standards, the Court finds the Findings and Recommendations to be supported by

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the record and by the magistrate judge’s analysis.
Defendants’ sole objection to the Findings and Recommendations is that the magistrate

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judge improperly found Plaintiff stated a claim against newly-added Defendant Velasquez,1 who

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is not named in either the original Complaint or First Amended Complaint (“FAC”). (ECF No.

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107 (citing ECF Nos. 1, 10).) Defendants argue the Court should decline to find a claim asserted

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against this new Defendant because Plaintiff failed to seek and obtain leave to add Velasquez as a

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Defendant pursuant to Federal Rule of Civil Procedure (“Rule”) 15(a)(2). (Id.) While

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Defendants’ argument is meritorious, their objection pertains to portions of the magistrate judge’s

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Screening Order that are not presently before the Court as findings and recommendations. Thus,

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Defendants may not seek dismissal of Velasquez by way of objecting to the Screening Order, but

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must instead file a properly noticed motion to dismiss or, in the alternative, motion for judgment

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on the pleadings. On this basis, Defendants objections are overruled.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations filed May 10, 2021 (ECF No. 106) are

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ADOPTED IN FULL; and

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2. Plaintiff’s due process claim is DISMISSED without leave to amend.

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Defendants are directed to respond to the Second Amendment Complaint as set forth in

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the Findings and Recommendations.

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IT IS SO ORDERED.

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DATE: July 7, 2021

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Troy L. Nunley
United States District Judge

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The Second Amended Complaint and majority of Defendants’ objections refer to the new
Defendant as “Valasquez” (see generally ECF Nos 96, 107), but the Findings and
Recommendations refer to this party as “Velasquez,” as does the Court herein.
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