(PC) Bagent v. Pierce et al, No. 1:2006cv01842 - Document 39 (E.D. Cal. 2009)

Court Description: ORDER ADOPTING FINDINGS and RECOMMENDATIONS 34 in Full, and Denying Defendants' 22 Motion to Dismiss; ORDER Dismissing Plaintiff's Due Process Claim, With Leave to File Second Amended Complaint Within Thirty Days signed by District Judge Lawrence J. O'Neill on 2/2/2009. Amended Complaint due by 3/5/2009.(Esteves, C)

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(PC) Bagent v. Pierce et al Doc. 39 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOHN BAGENT, 10 Plaintiff, 11 12 CASE NO. 1:06-cv-01842-LJO-SMS PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL, AND DENYING DEFENDANTS’ MOTION TO DISMISS v. RICHARD PIERCE, et al., (Docs. 22 and 34) 13 Defendants. ORDER DISMISSING PLAINTIFF’S DUE PROCESS CLAIM, WITH LEAVE TO FILE SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS 14 15 16 (Doc. 9) / 17 18 Plaintiff John Bagent (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis 19 in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302. 21 On December 8, 2008, the Magistrate Judge filed a Findings and Recommendations herein 22 which was served on the parties and which contained notice to the parties that any objections to the 23 Findings and Recommendations were to be filed within fifteen days. On January 12, 2009, Plaintiff 24 filed an Objection. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 26 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings 27 and Recommendations to be supported by the record and by proper analysis. 28 /// 1 Dockets.Justia.com 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendations, filed December 8, 2008, is adopted in full; 3 2. Defendants Mimms and Johnson’s motion to dismiss for failure to state a claim and 4 motion for a more definite statement, filed June 5, 2008, is DENIED; 5 3. Pursuant to the Court’s screening authority under 28 U.S.C. § 1915(e)(2)(B)(ii), 6 Plaintiff’s procedural due process claim is dismissed, with leave to amend, for failure 7 to state a claim upon which relief may be granted under section 1983; 8 4. 9 Plaintiff has thirty (30) days from the date of service of this order within which to file a second amended complaint; and 10 5. The Clerk’s Office shall send Plaintiff a civil rights complaint form. 11 12 IT IS SO ORDERED. 13 Dated: b9ed48 February 2, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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