(PC) Hodge v. Gonzales et al, No. 1:2015cv01618 - Document 28 (E.D. Cal. 2017)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 27 ; ORDER Regarding Defendants' Motion to Dismiss 17 , Plaintiff's Motion for Leave to Amend First Amended Complaint 24 , and Plaintiff's Motion for Scheduling Order 23 , signed by District Judge Anthony W. Ishii on 3/29/17: This matter is referred back to the assigned Magistrate Judge for proceedings consistent with this order. (Hellings, J)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 MARK HODGE, 10 Plaintiff, 11 12 v. J. GONZALES, et al., 13 Defendants. 14 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:15-cv-01618-AWI-BAM (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 27) ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS, (Doc. No. 17), PLAINTIFF’S MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT, (Doc. No. 24), AND PLAINTIFF’S MOTION FOR SCHEDULING ORDER, (Doc. No. 23) Plaintiff Mark Hodge (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds 20 on Plaintiff’s first amended complaint against Defendants Gonzalez and Flores for 21 unconstitutional conditions of confinement, against Defendant Gonzalez for excessive force, and 22 against Defendant Flores for failure to protect Plaintiff, all in violation of the Eighth 23 Amendment. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 24 § 636(b)(1)(B) and Local Rule 302.1 On March 9, 2017, the assigned Magistrate Judge filed a findings and recommendations 25 26 (“F&R”), recommending that Defendants’ motion to dismiss pursuant to Federal Rule of Civil 27 28 1 Defendant Gonzalez was erroneously sued as “Gonzales.” 1 1 Procedure 12(b)(6) be granted in part and denied in part. (Doc. No. 27.) Specifically, Defendants 2 moved to dismiss this action in its entirety on the grounds that the claims in Plaintiff’s first 3 amended complaint are barred by the holdings of Heck v. Humphrey, 512 U.S. 477, 480 (1994), 4 and Edwards v. Balisok, 520 U.S. 641, 643 (1997). The Magistrate Judge recommended that 5 Plaintiff’s Eighth Amendment excessive force claim against Defendant Gonzalez, and failure to 6 protect claim against Defendant Flores, be dismissed without prejudice as Heck barred, but that 7 the action continue to proceed on Plaintiff’s claim against Defendants Gonzalez and Flores for 8 unconstitutional conditions of confinement in violation of the Eighth Amendment. The 9 Magistrate Judge also recommended that Plaintiff’s motion for leave to amend the first amended 10 complaint and motion for a scheduling order both be denied. The parties were provided an opportunity to file objections to the findings and 11 12 recommendations within fourteen days. More than fourteen days have passed, and no objections 13 were filed. In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 14 15 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 16 Court finds that the F&R is supported by the record and proper analysis. 17 ORDER 18 Accordingly, IT IS HEREBY ORDERED that: 19 20 1. 2017 (Doc. No. 27), are ADOPTED IN FULL; 21 22 2. Defendants’ motion to dismiss, filed May 10, 2016 (Doc. No. 17), is GRANTED IN PART and DENIED IN PART; 23 24 The findings and recommendations filed by the assigned magistrate judge on March 9, 3. Plaintiff’s Eighth Amendment excessive force claim against Defendant Gonzalez, and 25 failure to protect claim against Defendant Flores, are DISMISSED, without prejudice, as 26 Heck-barred; 27 28 4. Plaintiff’s motion for leave to amend the first amended complaint, filed August 15, 2016 (Doc. No. 24), is DENIED; 2 1 5. Plaintiff’s motion for scheduling order, filed July 25, 2016 (Doc. No. 23), is DENIED; 2 6. This action proceeds only on Plaintiff’s claim against Defendants Gonzalez and Flores 3 for unconstitutional conditions of confinement in violation of the Eighth Amendment; 4 and 5 6 7. This matter is referred back to the assigned Magistrate Judge for proceedings consistent with this order. 7 8 IT IS SO ORDERED. 9 Dated: March 29, 2017 10 SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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