(PC) Campbell v. Dickey, No. 1:2014cv00918 - Document 47 (E.D. Cal. 2018)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and DENYING Defendant's Motion to Dismiss 40 , 45 , 46 , signed by Chief Judge Lawrence J. O'Neill on 8/24/2018: 14-Day Deadline. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY TYRONE CAMPBELL, SR., Plaintiff, 12 13 14 15 v. P. DICKEY, Case No. 1:14-cv-00918-LJO-BAM (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING DEFENDANT’S MOTION TO DISMISS (Doc. Nos. 40, 45, 46) Defendant. 16 17 Plaintiff Anthony Tyrone Campbell, Sr., is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 3, 2016, the Court dismissed this action for failing to state a claim upon which 21 relief may be granted. (Doc. No. 18.) Judgment was entered that same day. (Doc. No. 19.) 22 Plaintiff appealed. (Doc. No. 20.) 23 On March 17, 2017, the Ninth Circuit affirmed in part, reversed in part, and remanded this 24 action. (Doc. No. 26.) The Ninth Circuit found that all claims had been properly dismissed 25 except for Plaintiff’s equal protection claim against Defendant Dickey. The Ninth Circuit held 26 that such dismissal was premature because “the allegation that Dickey assigned Campbell to a 27 cell with a gang-affiliated inmate based on Campbell’s race, liberally construed, is ‘sufficient to 28 warrant ordering [defendant] to file an answer.’” (Id. at 2) (quoting Wilhelm v. Rotman, 680 F.3d 1 1 1113, 1116 (9th Cir. 2012)). See also Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) 2 (plaintiff need only allege that defendant acted at least in part based on a plaintiff’s protected 3 status). The Ninth Circuit issued its mandate on April 10, 2017. (Doc. No. 26.) 4 On October 9, 2017, Defendant Dickey filed a motion to dismiss under Federal Rule of 5 Civil Procedure 12(b)(6), arguing that Plaintiff had failed to state a cognizable claim, that his 6 claim is barred by the favorable termination rule as articulated in Heck v. Humphrey, 512 U.S. 7 477 (1994), and that Defendant is entitled to qualified immunity. On August 9, 2018, the 8 assigned Magistrate Judge recommended that Defendant’s motion be denied, in its entirety. 9 (Doc. No. 45.) The findings and recommendations was served on the parties and contained notice 10 that any objections to the findings and recommendations were to be filed within fourteen (14) 11 days. Defendant timely filed objections on August 23, 2018. (Doc. No. 46.) 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 13 de novo review of this case. Having carefully reviewed the entire file, the Court finds the 14 findings and recommendations to be supported by the record and by proper analysis. The 15 objections do not provide a basis upon which to reject the findings and recommendations. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations issued on August 9, 2018, are adopted in full; 18 2. Defendant’s motion to dismiss, filed on October 9, 2017, is denied; and 19 3. Defendant shall file an answer within fourteen (14) days of this order. Fed. R. Civ. 20 P. 12(a)(4)(A). 21 22 23 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ August 24, 2018 UNITED STATES CHIEF DISTRICT JUDGE 24 25 26 27 28 2
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