The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER: 1) ADOPTING REPORT AND RECOMMENDATION and 2) DENYING MOTION FOR ENTRY OF DEFAULT Doc. Nos. 68, 70, 76, 80, 82, 86
Tony John Wayne ("Plaintiff"), a former state prisoner proceeding pro se and in forma pauperis, filed a civil rights action pursuant to 42 U.S.C. § 1983. Defendants moved to dismiss Plaintiff's Second Amended Complaint (Doc. No. 37) on January 9, 2009. (Doc. No. 68.) Plaintiff filed no opposition to the motion. Also pending before the court are Plaintiff's motion for summary judgment (Doc. Nos. 70 and 80), motion to amend (Doc. No. 76), and motion for entry of default (Doc. No. 82).
Report and Recommendation
On June 2, 2009, Magistrate Judge Barbara L. Major issued a Report and Recommendation (Doc. No. 86, "R&R") denying Plaintiff's motion to amend and recommending this court: 1) grant in part and deny in part Defendants' motion to dismiss; and 2) deny Plaintiff's motion for summary judgment. Petitioner filed no objections to these recommendations.
Having carefully considered the thorough and thoughtful R&R, the record before the court, and the applicable authorities, the court wholly ADOPTS THE R&R.
Motion for Entry of Default
On January 16, 2009, Plaintiff filed a motion for entry of default. (Doc. No. 82.) Plaintiff asserted entry of default was proper because Defendants had not responded to the Second Amended Complaint within 20 days after service. However, Defendants waived service pursuant to Rule 4(d) of the Federal Rules of Civil Procedure and thus, no response was due until December 26, 2008. (See Doc. Nos. 55-62.) The court granted Defendants an extension of time to respond to January 9, 2009. (Doc. No. 67.) Defendants filed their motion to dismiss on this date. Plaintiff's motion for entry of default is therefore DENIED.
Based on the foregoing, 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 for 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. Plaintiff's allegations of vulgar or abusive language will be considered in the context of his § 1983 claim for excessive force. To the extent Plaintiff seeks monetary damages against Defendants acting in their official capacities, such claims are DISMISSED with prejudice. In addition, as recommended by Magistrate Judge Major, the court DENIES Plaintiff's motion to amend (Doc. No. 76) and motion for summary judgment (Doc. Nos. 70 and 80).
For the reasons stated above, the court also DENIES Plaintiff's motion for entry of default (Doc. No. 82).
Plaintiff is granted leave to file a third amended complaint consistent with this order. See Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (dismissal of pro se complaint for failure to state claim is proper only where obvious that amendment would be futile). If Plaintiff wishes to file a third amended complaint, he must do so by September 4, 2009. If Plaintiff does not file an third amended complaint by that date, the case will proceed on his § 1983 excessive force claim and Defendants are instructed to answer in accordance with the Federal Rules of Civil Procedure.
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