Opinion
2:19-cv-04502-GW-JC
01-14-2021
RICHARD H. BHIMJI, Plaintiff, v. D. BOWMAN, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
HONORABLE GEORGE H. WU, UNITED STATES DISTRICT JUDGE
The Court has conducted the review required by 28 U.S.C. § 636 and accepts the findings, conclusions and recommendation of the Magistrate Judge reflected in the November 29, 2020 Report and Recommendation of United States Magistrate Judge (“Report and Recommendation”).
IT IS HEREBY ORDERED:
1. Defendants' Motion to Dismiss is granted in part and denied in part.
2. The Complaint is dismissed as against defendants M. Duke, G. Castillo, J. Cook and E. Dickey with leave to amend.
3. Within twenty (20) days of the date of this Order, plaintiff shall do one of the following:
(a) If he wishes to proceed with his claims against defendants M. Duke, G. Castillo, J. Cook and E. Dickey which have been dismissed with leave to amend and is able to cure the deficiencies in such claims which have been identified in the Report and Recommendation, he shall file a First Amended Complaint; or
Any First Amended Complaint must: (a) be labeled “First Amended Complaint”; (b) be complete in and of itself and not refer in any manner to the original Complaint, i.e., it must include all claims on which plaintiff seeks to proceed (including, if plaintiff wishes to proceed thereon, the claims against defendants D. Bowman, L. Gomez, and E. Hansen that the Court has not dismissed herein); (c) contain a “short and plain” statement of the claim(s) for relief. See Fed. R. Civ. P. 8(a); (d) make each allegation “simple, concise and direct.” Fed.R.Civ.P. 8(d)(1); (e) make allegations in numbered paragraphs, “each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b); (f) set forth clearly the sequence of events giving rise to the claim(s) for relief; and (g) allege with sufficient specificity what each individual defendant did and how that individual's conduct violated plaintiff's civil rights. Plaintiff may not change the nature of this suit by adding new, unrelated claims or defendants in any First Amended Complaint. Cf. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (prisoners may not file “buckshot” complaintsi.e., a pleading that alleges unrelated violations against different defendants).
(b) If he wishes to proceed solely on his remaining claims against defendants D. Bowman, L. Gomez, and E. Hansen, and not to file a First Amended Complaint, he shall file a Notice of Intent to Proceed Solely Against Defendants Bowman, Gomez, and Hansen, in which case this action shall proceed solely against such defendants; or
(c) If he does not wish to proceed with this action at all, he shall file a Notice of Dismissal which will result in the voluntary dismissal of this action without prejudice; or
(d) If he wishes to stand on the original Complaint despite the pleading defects therein which have been identified in the Report and Recommendation, he shall file a Notice of Intent to Stand on Complaint, indicating plaintiffs intent to stand on the original Complaint which may result in the dismissal of this action in its entirety as against defendants Duke, Castillo, Cook and Dickey based upon such defects.
4. Plaintiff is cautioned that his failure timely to file a First Amended Complaint, a Notice of Intent to Proceed Solely Against Defendants Bowman, Gomez and Hansen, a Notice of Dismissal, or a Notice of Intent to Stand on Complaint may result in the dismissal of this action with or without prejudice on the grounds set forth in the Report and Recommendation, for failure diligently to prosecute and/or for failure to comply with this Order.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order on plaintiff and counsel for defendants.
IT IS SO ORDERED