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Martin E. Walters v. Mathew Cate

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 1, 2013

MARTIN E. WALTERS, PLAINTIFF,
v.
MATHEW CATE, ET AL., DEFENDANTS.

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 Second Amended Complaint, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and accepts the findings, conclusions and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that defendants' Motion to Dismiss is granted in part and denied in part as follows: (a) Plaintiff's claims against defendants in their official and individual capacities for monetary damages are dismissed without leave to amend; (b) defendants' Motion to Dismiss plaintiff's ex post facto claim against the named defendants in the official capacities for injunctive relief is denied; (c) plaintiff's ex post facto claim against the named defendants in their individual capacities for injunctive relief is dismissed with leave to amend; and (d) plaintiff's Takings Clause claim against defendants in their individual and official capacities for injunctive relief is dismissed without leave to amend.

If plaintiff still desires to pursue his ex post facto claim against the named defendants in their individual capacities for injunctive relief, he is ordered to file a Third Amended Complaint remedying the deficiencies discussed in the Report and Recommendation within thirty (30) days of the date of this Order. If plaintiff does not file a Third Amended Complaint, the Court will order defendants to file an Answer to the ex post facto claim against them in their official capacities for injunctive relief. 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 Third Amended Complaint.

If plaintiff chooses to file a Third Amended Complaint, it should bear the docket number assigned in this case; be labeled "Third Amended Complaint"; and be complete in and of itself without reference to the original Complaint, the FAC, the SAC, or any other pleading, attachment, or document.

COMMITTED NAME (if different)

FULL ADDRESS INCLUDING NAME OF INSTITUTION

PRISON NUMBER (if applicable)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

To be supplied by the Clerk

PLAINTIFF, v. DEFENDANT(S).

CIVIL RIGHTS COMPLAINT PURSUANT TO (Check one) G 42 U.S.C. § 1983 G Bivens v. Six Unknown Agents 403 U.S. 388 (1971)

PREVIOUS LAWSUITS

Have you brought any other lawsuits in a federal court while a prisoner: G Yes G No If your answer to "1." is yes, how many?

Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an attached piece of paper using the same outline.)

a. Parties to this previous lawsuit: Plaintiff

Defendants

b. Court

c. Docket or case number

d. Name of judge to whom case was assigned

e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it appealed? Is it still pending?)

f. Issues raised:

g. Approximate date of filing lawsuit:

h. Approximate date of disposition

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Is there a grievance procedure available at the institution where the events relating to your current complaint occurred? G Yes G No Have you filed a grievance concerning the facts relating to your current complaint? G Yes G No If your answer is no, explain why not

Is the grievance procedure completed? G Yes G No If your answer is no, explain why not

Please attach copies of papers related to the grievance procedure. JURISDICTION This complaint alleges that the civil rights of plaintiff

(print plaintiff's name) who presently resides at , (mailing address or place of confinement) were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at (institution/city where violation occurred)

on (date or dates) , , .

(Claim I) (Claim II) (Claim III)

: You need not name more than one defendant or allege more than one claim. If you are naming more than five (5) defendants, make a copy of this page to provide the information for additional defendants.

Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law:

Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law:

Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law:

Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law:

Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law:

CLAIM I

The following civil right has been violated:

Supporting Facts: Include all facts you consider important. State the facts clearly, in your own words, and without citing legal authority or argument. Be certain you describe, in separately numbered paragraphs, exactly what each DEFENDANT (by name) did to violate your right.

*If there is more than one claim, describe the additional claim(s) on another attached piece of paper using the same

E. REQUEST FOR RELIEF

I believe that I am entitled to the following specific relief:

(Date) (Signature of Plaintiff)

20130501

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