Opinion
No. 2:12-CV-0862-KJM-CMK-P
07-25-2013
JOHN E. JAMES, III, Plaintiff, v. R.J. RACKLEY, et al., Defendants.
ORDER
Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules.
On January 25, 2013, the magistrate judge filed findings and recommendations, which were served on the parties and which contained notice that the parties may file objections within a specified time. Timely objections to the findings and recommendations have been filed. To the extent the plaintiff is objecting to the magistrate judge's involvement in this case, Local Rule 302 governs this court's use of magistrate judges, regardless of whether the parties consent to full magistrate judge jurisdiction.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the file, the court finds the findings and recommendations generally to be supported by the record and by the proper analysis. However, plaintiff in his objections requested the opportunity to amend his complaint as to defendants Rackley, Kim, Dunkan, Zamora, Deuel Vocational Institution, Briggs, Gamble, Zuniga, and Dell. The Ninth Circuit has instructed that "'a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.'" Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); see also Gardner v. Marino, 563 F.3d 981 (9th Cir. 2009) (finding no abuse of discretion in denying leave to amend when amendment would be futile). Accordingly, the court grants plaintiff leave to amend his complaint as to these defendants if he is able to amend while complying with Federal Rule of Civil Procedure 11.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed January 25, 2013, are adopted in full.
2. Plaintiff's claims against defendants Rackley, Kim, Dunkan, Zamora, Deuel Vocational Institution, Briggs, Gamble, Zuniga and Dell are dismissed, with leave to amend.
3. Plaintiff's Eighth Amendment claim for denial of adequate medical treatment against defendants Palagummi, Wong, Mallory, and Awatani may proceed.
4. Any amended complaint must be filed within twenty-one (21) days of this order. An amended complaint should include plaintiff's Eighth Amendment claim, FED.R. CIV. P. 15, and may seek to plead plaintiff's other claims. If no amended complaint is filed, this action will proceed on the Eighth Amendment claim only.
5. This case is referred back to the magistrate judge for further handling consistent with this order.
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UNITED STATES DISTRICT JUDGE