Wayne et al v. Leal

Filing 88

ORDER signed by Judge Jeffrey T. Miller on 8/4/09. The court hereby adopts the findings and recommendations of the R&R. Accordingly, the court grants in part and denies in part Defendants' motion to dismiss. Plaintiff's § 1983 claims f or retaliation and falsified incident reports or withheld evidence are dismissed without prejudice and with leave to amend. Plaintiff's state law assault and battery claim is dismissed with prejudice. The court denies Plaintiff's motion to amend 76 and motion for summary judgment 70 and 80 . The court also denies Plaintiff's motion for entry of default 82 . Plaintiff is granted leave to file a third amended complaint by 9/4/09 consistent with this order.(All non-registered users served via U.S. Mail Service).(tkl) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O. LEAL et al., Defendants. Tony John Wayne ("Plaintiff"), a former state prisoner proceeding pro se and in forma pauperis, filed a civil rights action pursuant to 42 U.S.C. § 1983. Defendants moved to dismiss Plaintiff's Second Amended Complaint (Doc. No. 37) on January 9, 2009. (Doc. No. 68.) Plaintiff filed no opposition to the motion. Also pending before the court are Plaintiff's motion for summary judgment (Doc. Nos. 70 and 80), motion to amend (Doc. No. 76), and motion for entry of default (Doc. No. 82). // Report and Recommendation On June 2, 2009, Magistrate Judge Barbara L. Major issued a Report and Recommendation (Doc. No. 86, "R&R") denying Plaintiff's motion to amend and recommending this court: 1) grant in part and deny in part Defendants' motion to dismiss; and 2) deny Plaintiff's motion for summary judgment. Petitioner filed no objections to these recommendations. vs. TONY JOHN WAYNE, Plaintiff, CASE NO. 07 CV 1605 JM (BLM) ORDER: 1) ADOPTING REPORT AND RECOMMENDATION and 2) DENYING MOTION FOR ENTRY OF DEFAULT Doc. Nos. 68, 70, 76, 80, 82, 86

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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07cv1605

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Having carefully considered the thorough and thoughtful R&R, the record before the court, and the applicable authorities, the court wholly ADOPTS THE R&R. // Motion for Entry of Default On January 16, 2009, Plaintiff filed a motion for entry of default. (Doc. No. 82.) Plaintiff asserted entry of default was proper because Defendants had not responded to the Second Amended Complaint within 20 days after service. However, Defendants waived service pursuant to Rule 4(d) of the Federal Rules of Civil Procedure and thus, no response was due until December 26, 2008. (See Doc. Nos. 55-62.) The court granted Defendants an extension of time to respond to January 9, 2009. (Doc. No. 67.) Defendants filed their motion to dismiss on this date. Plaintiff's motion for entry of default is therefore DENIED. // Conclusion Based on the foregoing, the court hereby adopts the findings and recommendations of the R&R. Accordingly, the court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss. Plaintiff's § 1983 claims for retaliation and falsified incident reports or withheld evidence are DISMISSED without prejudice and with leave to amend. Plaintiff's state law assault and battery claim is DISMISSED with prejudice. Plaintiff's allegations of vulgar or abusive language will be considered in the context of his § 1983 claim for excessive force. To the extent Plaintiff seeks monetary damages against Defendants acting in their official capacities, such claims are DISMISSED with prejudice. In addition, as recommended by Magistrate Judge Major, the court DENIES Plaintiff's motion to amend (Doc. No. 76) and motion for summary judgment (Doc. Nos. 70 and 80). For the reasons stated above, the court also DENIES Plaintiff's motion for entry of default (Doc. No. 82). Plaintiff is granted leave to file a third amended complaint consistent with this order. See Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (dismissal of pro se complaint for failure to state claim is proper only where obvious that amendment would be futile). If Plaintiff wishes to file a third amended complaint, he must do so by September 4, 2009. If Plaintiff does not file an third amended -2-

07cv1605

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complaint by that date, the case will proceed on his § 1983 excessive force claim and Defendants are instructed to answer in accordance with the Federal Rules of Civil Procedure. DATED: August 4, 2009 Hon. Jeffrey T. Miller United States District Judge

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07cv1605