(PC) Hammler v. Lyons et al, No. 1:2019cv01650 - Document 36 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 34 Findings and Recommendations Recommending That Defendant Lucas's Rule 12(b)(6) 30 Motion to Dismiss the Complaint be Granted in Part and Denied in Part; ORDER for Defendant Lucas to File Answer to First Amended Complaint Within 30 Days, signed by District Judge Anthony W. Ishii on 07/27/2021. Case is Referred Back to Magistrate Judge for Further Proceedings. (Maldonado, C)

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(PC) Hammler v. Lyons et al Doc. 36 Case 1:19-cv-01650-AWI-GSA Document 36 Filed 07/27/21 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, 12 Plaintiff, 13 14 vs. J. LYONS, et al., Defendants. 15 1:19-cv-01650-AWI-GSA-PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT LUCAS’S RULE 12(b)(6) MOTION TO DISMISS THE COMPLAINT BE GRANTED IN PART AND DENIED IN PART (ECF No. 30.) ORDER FOR DEFENDANT LUCAS TO FILE ANSWER TO FIRST AMENDED COMPLAINT WITHIN 30 DAYS (ECF No. 12.) 16 17 18 19 20 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United 22 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On July 6, 2021, findings and recommendations were entered, recommending that 24 defendant Lucas’s Rule 12(b)(6) motion to dismiss be granted in part and denied in part. (ECF 25 No. 34.) On July 26, 2021, Plaintiff filed objections to the findings and recommendations. (ECF 26 No. 35.) 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 28 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 1 Dockets.Justia.com Case 1:19-cv-01650-AWI-GSA Document 36 Filed 07/27/21 Page 2 of 2 1 including Plaintiff’s objections, the court finds the findings and recommendations to be supported 2 by the record and proper analysis. 3 Accordingly, THE COURT HEREBY ORDERS that: 4 1. 2021, are ADOPTED IN FULL; 5 6 2. 3. Defendant Lucas’s motion to dismiss Plaintiff’s retaliation claim against defendant Lucas is granted, without leave to amend; 9 10 Defendant Lucas’s Rule 12(b)(6) motion to dismiss this case, filed on February 9, 2021, is granted in part and denied in part; 7 8 The findings and recommendations entered by the Magistrate Judge on July 6, 4. Defendant Lucas’s motion to dismiss Plaintiff’s claim for violation of freedom of speech is denied; 11 12 5. Defendant Lucas’s request for qualified immunity is denied; 13 6. Plaintiff’s retaliation claim is dismissed, without leave to amend; 14 7. This case now proceeds only with Plaintiff’s claim against defendant Lucas for violation of Plaintiff’s rights to freedom of speech under the First Amendment; 15 16 8. within thirty days of the date of service of this order; and 17 18 Defendant Lucas is ordered to file an Answer to the First Amended Complaint 9. This action is referred back to the Magistrate Judge for further proceedings. 19 20 IT IS SO ORDERED. 21 Dated: July 27, 2021 SENIOR DISTRICT JUDGE 22 23 24 25 26 27 28 2

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