(PC) Guillen III v. Francisco et al, No. 1:2018cv00290 - Document 27 (E.D. Cal. 2018)

Court Description: ORDER Adopting 21 FINDINGS AND RECOMMENDATIONS, DENYING Defendant's 18 Motion to Dismiss, and DIRECTING Defendant to File a Response within Fourteen Days from the Date of Service of this Order signed by District Judge Dale A. Drozd on 12/4/2018. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCOS CASEY GUILLEN III, 12 No. 1:18-cv-00290-DAD-SAB Plaintiff, 13 v. 14 T. FRANCISCO, 16 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING DEFENDANT’S MOTION TO DISMISS, AND DIRECTING DEFENDANT TO FILE A RESPONSE WITHIN FOURTEEN DAYS FROM THE DATE OF SERVICE OF THIS ORDER 17 (Doc. Nos. 18, 21, 25) 15 Defendant. 18 19 20 21 22 Plaintiff Marcos Casey Guillen III is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On September 17, 2018, the assigned magistrate judge issued findings and 23 recommendations, recommending that defendant’s motion to dismiss (Doc. No. 18) be denied. 24 (Doc. No. 21.) The findings and recommendations were served on the parties and contained 25 notice that any objections were to be filed within twenty days after service. (Id.) After receiving 26 an extension of time to do so, defendant filed objections on October 15, 2018. (Doc. No. 25.) 27 28 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of this case. Having carefully reviewed the entire file, including defendant’s 1 1 objections, the undersigned finds the findings and recommendations to be supported by the record 2 and by proper analysis. 3 In his objections, defendant argues that he is entitled to qualified immunity because, at the 4 time of the alleged incident, it was not clearly established that touching a prisoner’s medicine bag 5 incident to a search violated the First Amendment. The magistrate judge previously rejected this 6 precise argument, stating that “whether the evidence will support Plaintiff’s assertions and 7 whether Defendant may be entitled to qualified immunity are questions that cannot be resolved at 8 this juncture.” (Doc. No. 21 at 5) (citing cases). The undersigned agrees with this conclusion 9 here. 10 Accordingly, 11 1. 12 The findings and recommendations issued on September 17, 2018 (Doc. No. 21) are adopted in full; 13 2. Defendant’s motion to dismiss this action (Doc. No. 18) is denied; and 14 3. Defendant shall file a further response to the complaint within fourteen (14) days 15 16 17 18 from the date of service of this order. Fed. R. Civ. P. 12(4)(A). IT IS SO ORDERED. Dated: December 4, 2018 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2