The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ORDER GRANTING LEAVE TO FILE AMENDED COMPLAINT THAT CONTAINS ONLY A DUE PROCESS CLAIM AND AN EQUAL PROTECTION CLAIM
Plaintiff Willie Tyrone Cooper ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On April 11, 2008, the Magistrate Judge filed a Findings and Recommendations that recommended this action proceed against certain Defendants for a violation of due process and be dismissed as to the other Defendants and claims. The Findings and Recommendations were served on Plaintiff and contained notice to Plaintiff that any objection to the Findings and Recommendations was to be filed within thirty days. Plaintiff filed an objection on May 9, 2008.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis. However, in the objections, Plaintiff provides additional facts that may support a equal protection claim. It was not until the Findings and Recommendations that the court gave notice concerning the law for equal protection. Because the court should give Plaintiff notice of the complaint's pleading deficiencies and an opportunity to amend prior to dismiss, the Court finds that Plaintiff should be given leave to amend the equal protection claim. . See Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (if court determines that complaint fails to state claim, leave to amend may be granted to extent that complaint's deficiencies can be cured).
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed April 11, 2008, is adopted in full;
2. This action shall proceed on Plaintiff's amended complaint, filed June 21, 2007, against Defendants Morales, Alvarez, and Garza for denial of due process;
3. Plaintiff's false imprisonment claim is dismissed, with prejudice, for failure to state a claim;
4. Plaintiff's Eighth Amendment claims is dismissed, with prejudice, for failure to state a claim;
5. Plaintiff's equal protection claim is dismissed with leave to amend;
6. Plaintiff may file an amended complaint that includes only a claim against Defendants Morales, Alvarez, and Garza for denial of due process and a claim against Defendants Morales and Alvarez for a denial of equal protection;
7. The Clerk of the Court is DIRECTED to send Plaintiff the Court's standard form for civil rights actions;
8. If Plaintiff fails to file an amended complaint, this action will proceed on the due process claim against ...