(PC) Lopez v. Peterson, et al, No. 2:1998cv02111 - Document 367 (E.D. Cal. 2013)
Court Description: ORDER ADOPTING 363 FINDINGS and RECOMMENDATIONS, in full and with exception of correction noted, signed by Judge Lawrence K. Karlton on 11/5/2013. Defendants' 8/30/2013 352 Motion to Dismiss is GRANTED as follows: (a) that claims encompassed by paragraphs 1, 5, 6, 7, 10, and 12 are DISMISSED without prejudice as unexhausted; (b) that claims encompassed by paragraph 2 based on alleged lockdown in place before 5/7/1999 are DISMISSED without prejudice as unexhausted; (c) that claims encomp assed by paragraph 3, except for those alleging retaliation by Wright, are DISMISSED with prejudice for failure to state a claim; (d) that claims encompassed by paragraph 4, except for those alleging retaliation by Wright, are DISMISSED without preju dice as unexhausted; (e) that claims encompassed by paragraph 8, except for due process claims against Holmes, C. Peterson, and D. Peterson are DISMISSED with prejudice for failure to state claim; and (f) claims against Runnels and Jennings encompass ed by paragraph 9 are DISMISSED with prejudice for failure to state a claim. This action proceeds SOLELY claims identified above against defendants Castro, D. Peterson, Wright, Holmes, C. Peterson, Babich, Baughman, Diggs, Reyes, and Haas. Those defendants are ordered to file an answer to Complaint within time provided in Rule 12 of the Federal Rules of Civil Procedure. (Marciel, M)
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(PC) Lopez v. Peterson, et al Doc. 367 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW RICK LOPEZ, 12 Plaintiff, 13 14 No. 2:98-cv-2111-LKK-EFB P v. ORDER D. PETERSON, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On August 1, 2013, the magistrate judge filed findings and recommendations herein 20 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. On August 22, 2013, 23 plaintiff filed a motion for extension of time to file objections to the findings and 24 recommendations. (ECF No. 364.) On August 26, 2013, plaintiff filed objections.1 (ECF No. 25 366.) By order filed August 27, 2013, plaintiff’s motion for extension of time was granted and 26 plaintiff was granted until September 21, 2013 to file his objections. (ECF No. 365.) Pursuant to 27 28 1 The proof of service appended to plaintiff’s objections shows that the objections were delivered to prison officials for mailing on August 21, 2013. 1 Dockets.Justia.com 1 that order, plaintiff’s August 26, 2013 objections are timely filed and have been considered by 2 this court. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire 5 file, with one limited exception the court finds the findings and recommendations to be supported 6 by the record and by proper analysis. 7 With respect to the claims identified as Claims Alleged in Paragraph 4, see Findings and 8 Recommendations (ECF No. 363) at 3, 20, plaintiff objects in part that defendant D. Peterson is 9 the individual involved in the alleged events giving rise to these claims, not defendant C. 10 Peterson. Review of the second amended complaint shows that plaintiff alleges that defendant D. 11 Peterson was involved in the alleged wrongful reissuance of Rules Violation Report number 97- 12 08-066. See Second Amended Complaint (ECF No. 319) at ¶ 89. In all other respects, the 13 magistrate judge’s analysis of plaintiff’s failure to exhaust these claims is fully supported by the 14 record and by proper analysis. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. With the exception of the correction noted herein, the findings and recommendations 17 filed August 1, 2013, are adopted in full; 18 2. Defendants’ August 30, 2012 motion to dismiss (ECF No. 352) is granted as follows: 19 20 (a) that the claims encompassed by paragraphs 1, 5, 6, 7, 10, and 12 are dismissed without prejudice as unexhausted; 21 22 (b) that the claims encompassed by paragraph 2 based on the alleged lockdown in place before May 7, 1999, are dismissed without prejudice as unexhausted; 23 24 (c) that the claims encompassed by paragraph 3, except for those alleging retaliation by Wright, are dismissed with prejudice for failure to state a claim; 25 (d) that the claims encompassed by paragraph 4, except for those alleging 26 retaliation by Wright, are dismissed without prejudice as unexhausted; 27 ///// 28 ///// 2 1 (e) that the claims encompassed by paragraph 8, except for the due process claims 2 against Holmes, C. Peterson, and D. Peterson, are dismissed with prejudice for failure to state a 3 claim; and 4 5 (f) that the claims against Runnels and Jennings encompassed by paragraph 9 are dismissed with prejudice for failure to state a claim; and 6 3. This action proceeds solely on the claims identified above, against defendants 7 Castro, D. Peterson, Wright, Holmes, C. Peterson, Babich, Baughman, Diggs, Reyes, and Haas, 8 and those defendants are ordered to file an answer to the complaint within the time provided in 9 Rule 12 of the Federal Rules of Civil Procedure. 10 DATED: November 5, 2013. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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