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Cazares v. Nassif

United States District Court, Ninth Circuit

October 11, 2013

SIMON CAZARES, Plaintiff,
v.
TAREK NASSIF et al., Defendants.

FINDING AND RECOMMENDATIONS REGARDING DEFENDANT TAREK'S MOTION TO DISMISS FOR FAIURE TO STATE A COGNIZABLE CLAIM [ECF No. 25]

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Simon Cazares is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. ยง 1983.

I.

BACKGROUND

Plaintiff filed the instant complaint on February 15, 2008. On March 18, 2000, the Court dismissed the complaint, with leave to amend, for failure to state a cognizable claim. Plaintiff filed a first amended complaint on April 20, 2010. On November 29, 2011, the Court found that Plaintiff stated a cognizable Eighth Amendment claim for deliberate indifference to a serious medical need as to Defendants Tarek Nassif and D. Coleman, but found that Plaintiff failed to state cognizable claims against any other named defendant. Plaintiff was given the option of notifying the Court of his willingness to proceed on the claims against Nassif and Coleman or file a second amended complaint. Plaintiff opted to proceed on the claims against Nassif and Coleman only and dismiss all the remaining claims and defendants.

On May 13, 2013, Defendant Tarek Nassif filed a motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cognizable claim. Defendant also filed a request for judicial notice. Plaintiff filed an opposition on June 7, 2013, and Defendant filed a reply on June 13, 2013.

II.

DISCUSSION

A. Defendant's Request for Judicial Notice

Defendant has filed a request for the court to take judicial notice of the following documents filed in this action submitted as exhibits to his motion to dismiss:

Exhibit A - Plaintiff's original Complaint, filed on February 15, 2008. ECF No. 1.

Exhibit B - Order Dismissing Complaint, With Leave to File Amended Complaint Within 30 Days, executed March 18, 2010. ECF No. 6

Exhibit C - First Amended Prisoner Civil Rights Complaint. ECF No. 9

Exhibit D - Order Requiring Plaintiff to Either File Amended Complaint or Notify Court o Willingness to Proceed Only on Claims Found to be ...


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