Duran v. Mandujano et al
Filing
69
ORDER (1) Adopting Magistrate Judge's Report and Recommendation and (2) Granting 41 Defendant's Motion to Dismiss. This Court, having reviewed de novo the Magistrate Judge's R&R and the objections thereto, adopts the Magistrate Judge 's recommendation and grants Defendant's motion to dismiss. Plaintiff is granted leave to file a Second Amended Complaint ("SAC") that cures the pleading deficiencies identified in the R&R. The SAC shall be filed on or before March 31, 2017. Signed by Judge Dana M. Sabraw on 3/1/2017.(All non-registered users served via U.S. Mail Service)(aef)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
DAVID B. DURAN,
11
Plaintiff,
12
v.
13
OMAR MANDUJANO ET AL.,
14
Case No. 15-cv-2745 DMS (WVG)
ORDER (1) ADOPTING
MAGISTRATE JUDGE’S
REPORT AND
RECOMMENDATION AND (2)
GRANTING DEFENDANTS’
MOTION TO DISMISS
Defendants.
15
16
On December 7, 2015, Plaintiff David B. Duran, a state prisoner proceeding
17
pro se, filed a complaint under 42 U.S.C. § 1983. Defendants Omar Mandujano,
18
Alfredo Hernandez, and John Seaman filed their respective Answers on June 8,
19
2016, and Defendant Luis Hernandez filed an Answer on June 15, 2016.
20
Subsequently, Plaintiff filed a first amended complaint (“FAC”). 1 On September 8,
21
2016, Defendants filed a motion to dismiss the FAC for failure to state a claim. On
22
January 31, 2017, Magistrate Judge William V. Gallo issued a Report and
23
24
25
26
27
28
1
On August 2, 2016, Plaintiff filed a Motion for Leave to File an Amended
Complaint in order to add two exhibits. (ECF No. 33.) The Court granted the motion
and ordered Plaintiff to file his FAC by September 2, 2016. (ECF No. 34.) On
August 18, 2016, Plaintiff filed a Motion to Amend Document No. 33 by Permission
of the Court, requesting the Court to construe his previous motion as his FAC. (ECF
No. 37.) On August 23, 2016, the Court granted the motion and deemed as FAC the
complaint and the exhibits filed in the Motion for Leave to File an Amended
Complaint. (ECF No. 40.)
–1–
15-cv-2745 DMS (WVG)
1
Recommendation (“R&R”), recommending that the Court grant in part with leave to
2
amend and grant in part without leave to amend the FAC. Plaintiff filed objections
3
to the R&R on February 21, 2017.
4
This Court, having reviewed de novo the Magistrate Judge’s R&R and the
5
objections thereto, adopts the Magistrate Judge’s recommendation and grants
6
Defendant’s motion to dismiss. Plaintiff is granted leave to file a Second Amended
7
Complaint (“SAC”) that cures the pleading deficiencies identified in the R&R. The
8
SAC shall be filed on or before March 31, 2017.
9
10
IT IS SO ORDERED.
Dated: March 1, 2017
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
–2–
15-cv-2745 DMS (WVG)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?