-SKO (PC) Shepard v. Quillen, No. 1:2009cv00809 - Document 31 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendant's 27 Motion to Dismiss be Denied signed by Magistrate Judge Sheila K. Oberto on 2/2/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 3/10/2011. (Sant Agata, S)
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-SKO (PC) Shepard v. Quillen Doc. 31 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LAMONT SHEPARD, 10 11 12 CASE NO. 1:09-cv-00809-LJO-SKO PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT’S MOTION TO DISMISS BE DENIED v. T. QUILLEN, et al., 13 (Doc. 27) Defendants. OBJECTIONS DUE WITHIN 30 DAYS / 14 15 Plaintiff Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 21, 2010, Defendant 17 Quillen filed a motion to dismiss. (Doc. #27.) Plaintiff filed an opposition on September 28, 2010. 18 (Doc. #28.) Defendant filed a reply on September 30, 2010. (Doc. #29.) 19 Defendants argue that Plaintiff’s retaliation claim against Defendant Quillen should be 20 dismissed for failure to state a claim. In his opposition, Plaintiff argues that his amended complaint 21 did not raise any retaliation claims against Defendant Quillen. Plaintiff states that the only claims 22 raised in his amended complaint are an excessive force claim against Defendant Quillen and a 23 retaliation claim against Defendant Wise.1 24 Since Plaintiff’s amended complaint does not raise any retaliation claim against Defendant 25 Quillen, the Court will deny/disregard Defendant’s motion to dismiss. Plaintiff’s amended 26 27 28 1 In their moving papers, Defendant suggests that Plaintiff failed to obtain permission to add Defendant W ise as a defendant in this action. However, Defendant has failed to cite any authority suggesting that permission is necessary. 1 Dockets.Justia.com 1 complaint will be construed as only raising an excessive force claim against Defendant Quillen and 2 a retaliation claim against Defendant Wise.2 3 4 Based on the foregoing, it is HEREBY RECOMMENDED that Defendant’s motion to dismiss be DENIED. 5 These Findings and Recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 7 days after being served with these Findings and Recommendations, any party may file written 8 objections with the Court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 shall be served and filed within ten (10) days after service of the objections. The parties are advised 11 that failure to file objections within the specified time may waive the right to appeal the District 12 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: ie14hj February 2, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2 In a separate order, the Court will facilitate service of process on Defendant W ise. 2
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