The opinion of the court was delivered by: John A. Kronstadt United States District Judge
ORDER ACCEPTING 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 the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. No objections to the Report and Recommendation have been filed herein. The Court concurs with and accepts the findings, conclusions and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that defendants' Motion to Dismiss plaintiff's Fourteenth Amendment due process and Eighth Amendment claims is granted with leave to amend; that defendants' Motion to Dismiss plaintiff's supervisor liability claims is granted without leave to amend; that defendants' Motion to Dismiss plaintiff's equal protection claim is granted without leave to amend; that defendant Cowee's Motion to Dismiss plaintiff's retaliation claim is granted with leave to amend; that defendants Rousten, Carrasco, Ramos, McLaughlin, Zanchi, Cruz, Gonder, Powers, Wofford, Frank, Gaupel, Cash, and Nipper's Motion to Dismiss plaintiff's retaliation claim is granted without leave to amend; that defendants' Motion to Dismiss the claims against the defendants in their official capacities for monetary damages is granted on the basis of Eleventh Amendment immunity, without leave to amend; that defendants' Motion to Dismiss based on qualified immunity is denied without prejudice; that defendants' Motion to Dismiss unserved defendants O'Dell, Walker, and Delvin, is denied as moot because they were not named in the FAC; and plaintiff is ordered, if he still desires to pursue this action, to file a Second Amended Complaint remedying the deficiencies discussed in the Report and Recommendation within thirty (30) days of the service of this Order. The clerk is directed to send plaintiff a blank Central District civil rights complaint form, which plaintiff is encouraged to utilize should he file a Second Amended Complaint.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA INSTRUCTIONS FOR FILING A CIVIL RIGHTS COMPLAINT BY A PRISONER -
This package includes the following documents:
4 copies - complaint form 4 copies - declaration to proceed without prepayment of filing fees
In order for your complaint to be filed, you must submit the original and two copies of both the complaint and declaration to the Clerk. The remaining copy of each is for you to keep for your records. Your complaint must be typewritten or legibly handwritten in ink. You, the plaintiff, must sign and declare under penalty of perjury that the facts are correct. If you need additional space to answer a question, you must use the reverse side of the form or an additional blank page. You must file a separate complaint for each claim unless they are all related to the same incident or issue. You are required to allege facts; not legal arguments or authorities.
Payment of filing fee required
In accordance with 1996 amendments to the in forma pauperis statute, 28 U.S.C. § 1915, as a prisoner you will be obligated to pay the full filing fee of $350 for a civil action regardless of your forma pauperis status and the disposition of the case. If you have the money to pay the filing fee, you should submit a cashier's check, certified bank check, business or corporate check, government issued check, or money order drawn on a major America bank or the United States Postal Service, payable
Clerk of Court and mail it with your complaint to the address listed on the reverse side of these instructions. The Clerk's Office will also accept credit cards (Mastercard/Visa, Discover, American Express) for filing fees and miscellaneous fees. Credit card payments may be made at all payment windows where receipts are issued.
Request to pay filing fee in monthly installments
If you do not have the money to pay the full filing fee, you must complete the Request to Proceed Without Prepayment of Filing Fees with Declaration in Support. The Declaration must be returned to the Court with your complaint. NOTE: You must have a prison or jail official complete the Certification Section on the Declaration and attach to the Declaration a certified copy of your prison or jail trust account statement for the six months immediately preceding the filing of the complaint. If you submit an incomplete Declaration or do not submit a prison or jail trust account statement with the Declaration, your request to proceed without prepayment of the filing fees may be denied.
Initial partial filing fee assessment
If your request to proceed without prepayment of filing fees is granted, the Court will assess an initial partial filing fee at the time your action is filed. The initial partial filing fee will be equal to 20% of the average monthly deposits to your prison or jail account for the six months immediately preceding the filing of the action, or 20% of the average monthly balance in your prison or jail account for that same six month period, whichever is greater. The Court will order the agency that has custody of you to take that initial partial filing fee out of your prison or jail account as soon as funds are available and forward the money to the Clerk of Court.
Collection of balance of filing fee
After the initial partial filing fee has been paid, you will owe the balance of the filing fee. Until the amount of the filing fee is paid in full, each month you will owe 20% of your preceding month's income toward the balance. The agency that has custody of you will collect that money and send payments to the Clerk of Court any time the amount in your account exceeds Regardless of whether some or all of the filing fee has been paid, the Court is required to screen your complaint and to dismiss the complaint if: 1) your allegation of poverty is untrue; 2) the action is frivolous or malicious; 3) your complaint does not state a claim on which relief can be granted; or 4) you sue a defendant for money damages and that defendant is immune from liability for money damages.
If you file more than three actions or appeals while you are a prisoner which are dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, you will be prohibited from bringing any other actions in forma pauperis unless you are in imminent danger of serious physical injury. NOTE: You are required under penalties of perjury to provide accurate information regarding previous filings. Failure to provide this information may result in the immediate dismissal of your complaint.
To determine whether jurisdiction and venue are proper in this Court:
! AGAINST FEDERAL DEFENDANTS, please refer to 28 U.S.C. § 1391(e) and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397 (1971);
! AGAINST NON-FEDERAL DEFENDANTS, please refer to 28 U.S.C. § 1391(b) for claims brought pursuant to 42 U.S.C. § 1983.
If your request to proceed without prepayment of the filing fees is approved, the Court will determine whether the United States Marshal should serve the defendant(s) on your behalf.
INQUIRIES AND COPYING REQUESTS
Because of the large volume of cases filed by prisoners in this Court and limited court resources, the Court and Clerk's Office will not answer inquires concerning the status of your case or provide copies of documents, except at a charge of fifty cents ($0.50) per page. You must therefore keep copies of all documents submitted to the court for your own records.
Mail the original and the two copies of the following completed documents to the address below: complaint and declaration to proceed without prepayment of filing fees (if applicable):
United States District Court Central District of California 312 North Spring Street, Room G-8 Los Angeles, California 90012
ATTENTION: PRO SE CLERK Telephone: ...