Opinion
1:17-cv-00676-AWI-EPG (PC)
04-26-2023
JERRY LEE KING, Plaintiff, v. R. VILLEGAS and P. CRUZ, Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (ECF Nos. 106, 108, & 115) ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND GRANTING IN PART PLAINTIFF'S MOTION FOR LEAVE TO AMEND
Jerry King (“Plaintiff”') is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On May 18, 2022, Defendants filed a motion for judgment on the pleadings, arguing that Plaintiff's claims in this case are barred because they contradict the facts referred to in Plaintiff's nolo contendere (no contest) plea to violating California Penal Code § 69 against two victims in state court. (ECF No. 106). On May 31, 2022, Plaintiff filed a motion for leave to amend, asking to add additional defendants and claims related to his medical care following the injuries from the incident at issue in this case. (ECF No. 108). On November 17, 2022, the assigned magistrate judge entered findings and recommendations, recommending that:
1. Defendants' motion for judgment on the pleadings (ECF No. 106) be DENIED;
2. Plaintiff's motion for leave to amend (ECF No. 108) be GRANTED in part; and
3. Plaintiff's lodged amended complaint be filed in a separate case and Plaintiff's Eighth Amendment claims for deliberate indifference to his medical needs against defendants Registered Nurse Gant and Licensed Vocational Nurse Vitto proceed in that other case, subject to screening.(ECF No. 115, p. 18).
The parties were provided an opportunity to file objections to the findings and recommendations. On November 30, 2022, Defendants filed their objections. (ECF No. 116).
Plaintiff did not object, but on December 12, 2022, he filed his reply to Defendants' objections
(ECF No. 117).
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 entire file, the Court finds the findings and recommendations to be supported by the record and proper analysis.
Accordingly, IT IS ORDERED that:
1. The findings and recommendations issued on November 17, 2022, are adopted in full;
2. Defendants' motion for judgment on the pleadings (ECF No. 106) is DENIED;
3. Plaintiff's motion for leave to amend (ECF No. 108) is GRANTED in part;
The Court is only granting Plaintiff's motion for leave to amend insofar as it is attempting to add Eighth Amendment claims against Grant and Vitto for failing to provide medical care after the alleged excessive force incident. To the extent that Plaintiff is attempting to add additional claims against Defendants, Plaintiff's motion is denied.
4. Plaintiff's lodged amended complaint shall be filed in a separate case and Plaintiff's Eighth Amendment claims for deliberate indifference to his medical needs against defendants Registered Nurse Gant and Licensed Vocational Nurse Vitto proceed in that other case, subject to screening; and
5. The Clerk of Court is directed to:
a. Open a new § 1983 action for Plaintiff.
b. Assign a random magistrate judge to the action.
c. File and docket a copy of the following in the newly opened action: Plaintiff's original complaint (ECF No. 1); the order granting Plaintiff's application to
proceed in forma pauperis (ECF No. 6); Plaintiffs Amended Complaint (ECF No. 92); the findings and recommendations issued on November 17, 2022 (ECF No. 115); and this order.
IT IS SO ORDERED.