-BAM (PC) Mootry v. Flores, et al., No. 1:2009cv01252 - Document 50 (E.D. Cal. 2011)

Court Description: ORDER ADOPTING 47 FINDINGS AND RECOMMENDATIONS; ORDER GRANTING IN PART AND DENYING IN PART 32 Defendants' Motion to Dismiss; ORDER DENYING AS MOOT 35 Plaintiff's Motion to Amend; and ORDER DIRECTING PLAINTIFF to File a Second Amended Complaint, signed by District Judge Lawrence J. O'Neill on 12/20/2011. Second Amended Complaint due within thirty (30) days. (Jessen, A)
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-BAM (PC) Mootry v. Flores, et al. Doc. 50 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL MOOTRY, 10 11 12 CASE NO. 1:09-cv-01252-LJO-BAM PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS (ECF No. 47) v. E. G. FLORES, et al., 13 ORDER DENYING PLAINTIFF’S MOTION TO AMEND AS MOOT (ECF No. 35) Defendants. 14 THIRTY-DAY DEADLINE / 15 16 Plaintiff Michael Mootry (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United 18 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On November 16, 2011, the Magistrate Judge filed a Findings and Recommendations herein 20 which was served on the parties and which contained notice to the parties that any objections to the 21 Findings and Recommendations were to be filed within thirty days. On December 19, 2011, Plaintiff 22 filed an Objection. In his Objection Plaintiff raises new arguments and presents additional factual 23 allegations that were not included in the First Amended Complaint or the Opposition to the Motion 24 to Dismiss. The Court declines to exercise its discretion to consider Plaintiff’s arguments asserted 25 for the first time in the Objection to the Findings and Recommendations. Espinosa -Matthews v. 26 California, 432 F.3d 1021, 1026 n.4 (9th Cir. 2005); United States v. Howell, 231 F.3d 615, 621-622 27 (9th Cir. 2000). 28 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 1 Dockets.Justia.com 1 de novo review of this case. Having carefully reviewed the entire file, the undersigned finds the 2 findings and recommendations to be supported by the record and by proper analysis. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Findings and Recommendations, filed June 6, 2011, is adopted in full; 5 2. Defendants’ Motion to Dismiss, filed June 10, 2011, is granted in part and denied in 6 part as follows: 7 a. 8 Plaintiff’s Religious Land Use and Institutionalized Persons claims are dismissed, without leave to amend, as moot; 9 b. 10 Plaintiff’s First Amended Complaint is dismissed, with leave to amend for failure to state a claim; 11 c. 12 Defendants’ Motion to Dismiss based upon qualified immunity is denied, without prejudice; 13 3. 14 Within thirty days from the date of service of this order Plaintiff shall file a Second Amended Complaint; 15 4. Plaintiff’s Motion to Amend, filed June 30, 2011, is denied as moot; and 16 6. If Plaintiff fails to file an amended complaint in compliance with this order, this 17 action will be dismissed, with prejudice, for failure to state a claim. 18 19 IT IS SO ORDERED. Dated: b9ed48 December 20, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2