(PC) Brewer v. McGuinness, et al., No. 1:2007cv00120 - Document 48 (E.D. Cal. 2009)

Court Description: ORDER ADOPTING 46 FINDINGS AND RECOMMENDATIONS, GRANTING in Part and Denying in Part Defendant McGuinness's 36 Motion to Dismiss, and Sua Sponte Dismissing Certain Claims Pursuant to Screening Authority, With Leave to Amend; Order Requiring Plaintiff to File a Third Amended Complaint Within Thirty Days signed by Chief Judge Anthony W. Ishii on 10/26/2009. (Bradley, A)

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(PC) Brewer v. McGuinness, et al. Doc. 48 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 EDDIE BREWER, 10 CASE NO. 1:07-cv-00120-AWI-GSA PC Plaintiff, 11 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING IN PART AND DENYING IN PART DEFENDANT MCGUINNESS’S MOTION TO DISMISS, AND SUA SPONTE DISMISSING CERTAIN CLAIMS PURSUANT TO SCREENING AUTHORITY, WITH LEAVE TO AMEND v. 12 WILLIAM McGUINNESS, et al., 13 Defendants. 14 (Docs. 36 and 46) 15 ORDER REQUIRING PLAINTIFF TO FILE A THIRD AMENDED COMPLAINT WITHIN THIRTY DAYS 16 17 / 18 Plaintiff Eddie Brewer is a state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302. 21 On August 31, 2009, United States Magistrate Judge Gary S. Austin recommended that 22 Defendant McGuinness’s motion to dismiss be granted in part and denied in part. Judge Austin also 23 sua sponte screened the claims in light of the issuance of Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 24 (2009), and recommending dismissal with leave to amend. 28 U.S.C. § 1915A. The parties were 25 given thirty days within which to object. No objections have been filed. 26 /// 27 /// 28 1 Dockets.Justia.com 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 2 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings 3 and Recommendations to be supported by the record and by proper analysis. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The Findings and Recommendations, filed August 31, 2009, is adopted in full; 6 2. Defendant McGuinness’s motion to dismiss, filed April 30, 2009, is GRANTED IN 7 PART and DENIED IN PART as follows: 8 a. 9 Amendment immunity is denied; 10 b. 11 c. 13 3. 4. Plaintiff ’s negligence claim against Defendant Grannis is dismissed for failure to state a claim; 5. 19 20 Plaintiff’s Eighth Amendment claims against Defendants McGuinness and Grannis are dismissed for failure to state a claim; 17 18 Defendant’s motion to dismiss the negligence claim against him for failure to state a claim is granted; 15 16 Defendant’s motion to dismiss the negligence claim against him for failure to comply with the California Tort Claims Act is denied; and 12 14 Defendant’s motion to dismiss the claim against him based on Eleventh Within thirty (30) days from the date of service of this order, Plaintiff shall file a third amended complaint; and 6. 21 If Plaintiff fails to file a third amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim. 22 23 IT IS SO ORDERED. 24 Dated: 0m8i78 October 26, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 25 26 27 28 2

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