UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 23, 2009
BRUCE THORNS, PLAINTIFF,
S. RYAN, ET AL., DEFENDANT.
The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
On April 15, 2008, Plaintiff Bruce Thorns, a state prisoner proceeding pro se and in forma pauperis, filed a first amended complaint ("FAC") pursuant to 42 U.S.C. § 1983 against twenty-three named defendants.*fn1 (Doc. No. 61.) On May 15, 2008, Defendants filed a motion to dismiss the FAC for failure to exhaust administrative remedies and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 62.) Plaintiff filed a response in opposition on June 12, 2008. (Doc. No. 65.) Defendants filed a reply on June 19, 2008. (Doc. No. 66.) On July 31, 2008, the Magistrate Judge entered a Report and Recommendation that the Court grant in part and deny in part Defendants' motion to dismiss the FAC. (Doc. No. 67.) The Court set deadlines of October 2, 2008 for Plaintiff to file any objections to the Report and Recommendation and October 16, 2008 for Defendants to file any reply. (Doc. No. 68.) Plaintiff submitted his objections on October 2, 2008 and the Defendants did not file a reply. (Doc. No. 70.)
Plaintiff has exhausted his administrative remedies and agrees with the Magistrate Judge's recommendations in his response to the Report and Recommendation. (See Doc. No. 70.) The Defendants have similarly not lodged any objections to the Report and Recommendation. Accordingly, the Court adopts the Report and Recommendation, grants the motion in part with leave to amend and denies the motion in part.
For the reasons set forth above, the Court ADOPTS the findings contained in the Report and Recommendation (Doc. No. 67) and ORDERS as follows on the Defendants' motion to dismiss (Doc. No. 62):
1. The Court DENIES Defendants' motion to dismiss Plaintiff's claim of excessive force against Defendants O'Connell and Casillas.
2. The Court GRANTS WITH LEAVE TO AMEND Defendants' motion to dismiss Plaintiff's claim of retaliation in violation of his First Amendment rights against Defendants Rivas, Limas, Elizondo, Ritter, Crittendon, Brown, Davis, Trujillo, Jimenez, Janda, Ryan, Ochoa, Ries, Kelly, Whitman, Kellerman, Borem, Harmon, Nelson, Ramirez, and Williams.
3. The Court GRANTS WITH LEAVE TO AMEND Defendant's motion to dismiss Plaintiff's claim of due process violations under the Fourteenth Amendment against Defendants Limas, Elizondo, Ramirez, and Jimenez.
4. The Court sua sponte DISMISSES WITH LEAVE TO AMEND Plaintiff's claim of conspiracy against Defendants Ryan, Ochoa, Ries, Kelly,Whitman, Kellerman, Ritter, Crittendon, Borem, Harmon, Nelson, Ramirez, Williams, Rivas, Limas, Elizondo, Brown, Davis, Trujillo, Janda, and Jimenez.
5. The Court sua sponte DISMISSES WITH LEAVE TO AMEND Plaintiff's claim of deprivation of personal property in violation of his Fourteenth Amendment due process rights against Defendant Borem.
Plaintiff shall have 30 days from the date of this order to file a second amended complaint.
IT IS SO ORDERED.