-DAD (PC) Jacob v. Ramirez et al, No. 2:2010cv00692 - Document 21 (E.D. Cal. 2011)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 3/23/2011 ORDERING the clerk to assign this action to a US District Judge; and RECOMMENDING that dfts' 18 motion to dismiss be denied; and dfts be directed to answer pltf's amended cmplt w/in 10 days of any order by the district court adopting thes findings and recommendations. Assigned and Referred to Judge Frank C. Damrell, Jr.; Objections due w/in 14 days. (Yin, K)

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-DAD (PC) Jacob v. Ramirez et al Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL C. JACOB, 11 Plaintiff, 12 13 No. 2:10-cv-0692 DAD (PC) vs. M. T. RAMIREZ, et al., 14 ORDER AND Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. Plaintiff claims that he has been improperly identified as a member of a 18 prison gang. Plaintiff seeks injunctive relief requiring defendants to remove any and all 19 identification of plaintiff as a “Crip” from all classification and critical case information 20 documentation and to amend their regulations concerning gang identification to comply with the 21 requirements of a federal court order. 22 Defendants have moved to dismiss this action, contending that they are entitled to 23 qualified immunity. In opposition to the motion, plaintiff argues, correctly, that qualified 24 immunity is a defense to a request for money damages and not to a request for injunctive relief. 25 See Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989) (citing 26 ///// 1 Dockets.Justia.com 1 Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Accordingly, the defense of qualified immunity 2 is inapplicable in this action. 3 4 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign this action to a United States District Judge; and 5 IT IS HEREBY RECOMMENDED that: 6 1. Defendants’ December 21, 201 motion to dismiss be denied; and 7 2. Defendants be directed to answer plaintiff’s amended complaint within ten 8 days from the date of any order by the district court adopting these findings and 9 recommendations. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 objections shall be filed and served within fourteen days after service of the objections. The 16 parties are advised that failure to file objections within the specified time may waive the right to 17 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: March 23, 2011. 19 20 21 22 23 24 25 26 2

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