(PC) Leslie v. Madrigal et al, No. 1:2016cv01698 - Document 35 (E.D. Cal. 2019)

Court Description: ORDER ADOPTING 34 FINDINGS AND RECOMMENDATIONS Regarding 29 Defendants' Motion to Dismiss signed by District Judge Anthony W. Ishii on 3/13/2019. Fourth Amended Complaint due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 DESHAWN D. LESLIE, 12 13 14 15 Case No. 1:16-cv-01698-AWI-SKO (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ON DEFENDANTS’ MOTION TO DISMISS vs. MADRIGAL, et al., (Doc. Nos. 29, 34) Defendants. TWENTY-ONE DAY DEADLINE 16 17 18 Plaintiff, Deshawn D. Leslie, is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. Plaintiff is 21 proceeding on his Third Amended Complaint. (Doc. 21.) Defendants filed a motion to dismiss. 22 (Doc. 29.) Plaintiff filed an opposition (Doc. 32), but Defendants did not file a reply. On January 23 3, 2019, the Magistrate Judge recommended Defendants’ motion be granted in part and denied in 24 part and that Plaintiff be given opportunity to amend his allegations on his claims under the Equal 25 Protection Clause in Claim II. (Doc. 34.) The Findings and Recommendations was served that 26 same day and provided twenty-one days for the parties to file objections. More than the allowed 27 time has passed and no objections have been filed. 28 1 1 In accordance with the provisions of 28 U.S.C. § 636(b), this Court has reviewed the 2 matter and finds the Findings and Recommendations to be supported by the record and by proper 3 analysis. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The Findings and Recommendations issued on January 3, 2019 (Doc. No. 34) is 6 7 ADOTPED; 2. Defendants’ motion to dismiss (Doc. No. 29) any claims under the Equal Protection Clause in Claim II is GRANTED; and 8 9 3. To the extent that Plaintiff wishes to plead an Equal Protection Clause cause of action 10 in Claim II, within fourteen (14) days from the date of service of this order Plaintiff 11 must file a fourth amended complaint curing the deficiencies identified in the findings 12 and recommendations;1 13 4. Defendants’ motion to dismiss (Doc. No. 29) is otherwise DENIED; and 14 5. This case is referred back to the Magistrate Judge for further proceedings. 15 16 IT IS SO ORDERED. 17 Dated: March 13, 2019 18 SENIOR DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 1 If Plaintiff fails to file a timely fourth amended complaint that changes the allegations under Claim II, the Claim II cause of action will be read as limited to an Eighth Amendment claim only (as discussed in the Findings and Recommendation). 2

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