(PC) Nino v. Munoz et al, No. 1:2020cv01722 - Document 45 (E.D. Cal. 2023)

Court Description: ORDER ADOPTING 44 Findings and Recommendations to Grant in Part and Deny in Part 38 Defendant Sullivan's Motion to Dismiss, signed by District Judge Ana de Alba on 5/31/2023. Amended Complaint due within 30 days. The matter is referred back to the Magistrate Judge for further proceedings. (Rivera, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 v. 14 J. MUNOZ, et al., 15 Case No. 1:20-cv-01722-ADA-CDB (PC) JOE NINO, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART DEFENDANT SULLIVAN’S MOTION TO DISMISS (ECF No. 44) Defendants. 16 17 Plaintiff Joe Nino (“Plaintiff”), appearing through counsel, brought this civil rights action 18 pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant 19 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 21, 2023, the assigned Magistrate Judge issued findings and recommendations, 21 recommending that Defendant Sullivan’s motion to dismiss be granted in part and denied in part. 22 (See ECF No. 44.) Specifically, the Magistrate Judge recommended the motion be granted in part 23 for Plaintiff’s failure to state a claim alleging supervisory liability against Defendant Sullivan for 24 Eighth Amendment violations. (Id. at 18.) The Magistrate Judge further recommended that 25 Plaintiff be granted leave to file a fourth amended complaint to cure the deficiencies identified in 26 his claim against Defendant Sullivan, assuming he could do so in good faith. (Id. at 18-19.) Lastly, 27 the Magistrate Judge provided 14 days within which any party could file objections to the findings 28 and recommendations. (Id. at 19.) More than 14 days have passed, and no party has filed objections 1 to the findings and recommendations. 2 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 3 de novo review of this case. Having carefully reviewed the file, the Court finds the findings and 4 recommendations to be supported by the record and proper analysis. 5 Accordingly, 6 1. The findings and recommendations issued on February 21, 2023, (ECF No. 44), are 7 8 ADOPTED in full; 2. Defendant Sullivan’s motion to dismiss, (ECF No. 38), is GRANTED in PART and 9 DENIED in PART; 10 3. Plaintiff is GRANTED leave to amend to file a fourth amended complaint. Plaintiff 11 SHALL file his fourth amended complaint within 30 days of the date of service of this 12 order; and 13 4. The matter is referred back to the Magistrate Judge for further proceedings. 14 15 16 17 IT IS SO ORDERED. Dated: May 31, 2023 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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