Wayne et al v. Leal, No. 3:2007cv01605 - Document 88 (S.D. Cal. 2009)

Court Description: ORDER signed by Judge Jeffrey T. Miller on 8/4/09. The court hereby adopts the findings and recommendations of the R&R. Accordingly, the court grants in part and denies in part Defendants' motion to dismiss. Plaintiff's § 1983 claims f or retaliation and falsified incident reports or withheld evidence are dismissed without prejudice and with leave to amend. Plaintiff's state law assault and battery claim is dismissed with prejudice. The court denies Plaintiff's motion to amend 76 and motion for summary judgment 70 and 80 . The court also denies Plaintiff's motion for entry of default 82 . Plaintiff is granted leave to file a third amended complaint by 9/4/09 consistent with this order.(All non-registered users served via U.S. Mail Service).(tkl) (av1).

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Wayne et al v. Leal Doc. 88 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TONY JOHN WAYNE, CASE NO. 07 CV 1605 JM (BLM) Plaintiff, 12 ORDER: 1) ADOPTING REPORT AND RECOMMENDATION and 2) DENYING MOTION FOR ENTRY OF DEFAULT vs. 13 14 15 O. LEAL et al., Doc. Nos. 68, 70, 76, 80, 82, 86 Defendants. 16 17 Tony John Wayne (“Plaintiff”), a former state prisoner proceeding pro se and in forma 18 pauperis, filed a civil rights action pursuant to 42 U.S.C. § 1983. Defendants moved to dismiss 19 Plaintiff’s Second Amended Complaint (Doc. No. 37) on January 9, 2009. (Doc. No. 68.) Plaintiff 20 filed no opposition to the motion. Also pending before the court are Plaintiff’s motion for summary 21 judgment (Doc. Nos. 70 and 80), motion to amend (Doc. No. 76), and motion for entry of default 22 (Doc. No. 82). 23 // 24 Report and Recommendation 25 On June 2, 2009, Magistrate Judge Barbara L. Major issued a Report and Recommendation 26 (Doc. No. 86, “R&R”) denying Plaintiff’s motion to amend and recommending this court: 1) grant in 27 part and deny in part Defendants’ motion to dismiss; and 2) deny Plaintiff’s motion for summary 28 judgment. Petitioner filed no objections to these recommendations. -1- 07cv1605 Dockets.Justia.com 1 Having carefully considered the thorough and thoughtful R&R, the record before the court, 2 and the applicable authorities, the court wholly ADOPTS THE R&R. 3 // 4 Motion for Entry of Default 5 On January 16, 2009, Plaintiff filed a motion for entry of default. (Doc. No. 82.) Plaintiff 6 asserted entry of default was proper because Defendants had not responded to the Second Amended 7 Complaint within 20 days after service. However, Defendants waived service pursuant to Rule 4(d) 8 of the Federal Rules of Civil Procedure and thus, no response was due until December 26, 2008. (See 9 Doc. Nos. 55-62.) The court granted Defendants an extension of time to respond to January 9, 2009. 10 (Doc. No. 67.) Defendants filed their motion to dismiss on this date. Plaintiff’s motion for entry of 11 default is therefore DENIED. 12 // 13 Conclusion 14 Based on the foregoing, the court hereby adopts the findings and recommendations of the 15 R&R. Accordingly, the court GRANTS IN PART and DENIES IN PART Defendants’ motion to 16 dismiss. Plaintiff’s § 1983 claims for retaliation and falsified incident reports or withheld evidence 17 are DISMISSED without prejudice and with leave to amend. Plaintiff’s state law assault and battery 18 claim is DISMISSED with prejudice. Plaintiff’s allegations of vulgar or abusive language will be 19 considered in the context of his § 1983 claim for excessive force. To the extent Plaintiff seeks 20 monetary damages against Defendants acting in their official capacities, such claims are DISMISSED 21 with prejudice. In addition, as recommended by Magistrate Judge Major, the court DENIES 22 Plaintiff’s motion to amend (Doc. No. 76) and motion for summary judgment (Doc. Nos. 70 and 80). 23 For the reasons stated above, the court also DENIES Plaintiff’s motion for entry of default 24 (Doc. No. 82). 25 Plaintiff is granted leave to file a third amended complaint consistent with this order. See 26 Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (dismissal of pro se complaint for failure to state 27 claim is proper only where obvious that amendment would be futile). If Plaintiff wishes to file a third 28 amended complaint, he must do so by September 4, 2009. If Plaintiff does not file an third amended -2- 07cv1605 1 complaint by that date, the case will proceed on his § 1983 excessive force claim and Defendants are 2 instructed to answer in accordance with the Federal Rules of Civil Procedure. 3 DATED: August 4, 2009 4 5 Hon. Jeffrey T. Miller United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 07cv1605

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