(PC) Boudreaux v. Cate, et al., No. 2:2014cv00997 - Document 42 (E.D. Cal. 2017)

Court Description: ORDER adopting 40 FINDINGS AND RECOMMENDATIONS signed by District Judge Garland E. Burrell, Jr on 3/7/17: Defendants' Motion to Dismiss (ECF No. 28) is granted in part and denied in part. Within thirty days from the date of this order, plaintiff shall file a Third Amended Complaint. Plaintiff's October 14, 2016 Motion to Stay (ECF No. 35) is denied as moot and Defendants' Motion to Strike (ECF No. 37) is denied. (Kaminski, H)
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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 THADDEUS BOUDREAUX, 12 Plaintiff, 13 14 No. 2:14-cv-0997 GEB DB P v. ORDER MATTHEW CATE, 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 February 6, 2017, 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. Defendants have filed 23 objections to the findings and recommendations. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 court finds the findings and recommendations to be supported by the record and by proper 27 analysis. 28 ///// 1 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed February 6, 2017 (ECF No. 40) are adopted in 3 4 full; 2. Defendants’ Motion to Dismiss (ECF No. 28) is granted in part and denied in part; 5 a. Plaintiff's claims against defendants in their official capacities are dismissed; 6 b. Plaintiff’s claims against defendants for violation of the Eighth Amendment are 7 dismissed without prejudice; and 8 c. Each defendant’s motion to dismiss is denied with respect to plaintiff’s equal 9 protection claims and with respect to each defendant’s assertion of qualified 10 11 12 13 14 immunity. 3. Within thirty days from the date of this order, plaintiff shall file a Third Amended Complaint; 4. If plaintiff fails to file a timely Third Amended Complaint, this case will proceed on plaintiff’s equal protection claims set out in the Second Amended Complaint; and 15 4. Plaintiff’s October 14, 2016 Motion to Stay (ECF No. 35) is denied as moot: and 16 5. Defendants’ Motion to Strike (ECF No. 37) is denied. 17 18 Dated: March 7, 2017 19 20 21 22 23 24 25 26 27 28 2