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Rio v. Schwarzenegger

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 20, 2010

RAMON DEL RIO, PLAINTIFF,
v.
GOVERNOR SCHWARZENEGGER, ET AL, DEFENDANTS.

The opinion of the court was delivered by: Honorable Terry J. Hatter, Jr. United States District Judge

ORDER ACCEPTING AND ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all of the records herein, and the Amended Report and Recommendation of United States Magistrate Judge. The time for filing Objections to the Amended Report and Recommendation has passed, and no Objections have been filed with the Court. Having completed its review, the Court accepts and adopts the Magistrate Judge's Amended Report and Recommendation.

IT IS ORDERED that the First Amended Complaint is dismissed with leave to amend as follows:

(1) the following claims alleged in the First Amended Complaint are dismissed without leave to amend: all official capacity claims; all Due Process Clause and Takings Clause claims based on the confiscation and loss of plaintiff's legal papers; all Due Process Clause claims based on the placement of allegedly false information in plaintiff's prison file; and all Fourth, Sixth, Seventh, Ninth and Thirteenth Amendment claims;

(2) defendants Correctional Captain E. Flamer and Correctional Counselor E. Ruelas are dismissed from this action; and

(3) plaintiff is granted leave to file a Second Amended Complaint that is consistent with this Order and the Amended Report and Recommendation and adequately sets forth, with supporting factual allegations, plaintiff's retaliation claims against defendants Correctional Captains Anti and Payton, plaintiff's Eighth Amendment claims against defendants Anti, Payton, and Associate Warden Crawford, and plaintiff's retaliation and/or Due Process Clause claims against defendants Correctional Counselor B. Arneson and Classification Staff Representatives D. Arline and W. Sanford based on plaintiff's placement in administrative segregation.

Plaintiff shall have thirty (30) days from the date of this Order within which to file his Second Amended Complaint, attempting to cure the defects described in the Amended Report and Recommendation. The Second Amended Complaint, if any, shall be complete in itself. It shall not refer in any manner to the original Complaint or the First Amended Complaint. Plaintiff may not add new claims or defendants without prior leave of court. Fed. R. Civ. P. 15(a).

Plaintiff is explicitly cautioned that failure to timely file a Second Amended Complaint may result in a dismissal of this action for failure to prosecute and/or for failure to comply with this Court's orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

IT IS SO ORDERED.

20100120

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