Opinion
1:19-cv-01650-AWI-GSA-PC
07-27-2021
ALLEN HAMMLER, Plaintiff, v. J. LYONS, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT LUCAS'S RULE 12(B)(6) MOTION TO DISMISS THE COMPLAINT BE GRANTED IN PART AND DENIED IN PART (ECF NO. 30.) ORDER FOR DEFENDANT LUCAS TO FILE ANSWER TO FIRST AMENDED COMPLAINT WITHIN 30 DAYS (ECF NO. 12.)
Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action 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 July 6, 2021, findings and recommendations were entered, recommending that defendant Lucas's Rule 12(b)(6) motion to dismiss be granted in part and denied in part. (ECF No. 34.) On July 26, 2021, Plaintiff filed objections to the findings and recommendations. (ECF No. 35.)
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiffs objections, the court finds the findings and recommendations to be supported by the record and proper analysis.
Accordingly, THE COURT HEREBY ORDERS that:
1. The findings and recommendations entered by the Magistrate Judge on July 6, 2021, are ADOPTED IN FULL;
2. Defendant Lucas's Rule 12(b)(6) motion to dismiss this case, filed on February 9, 2021, is granted in part and denied in part;
3. Defendant Lucas's motion to dismiss Plaintiffs retaliation claim against defendant Lucas is granted, without leave to amend;
4. Defendant Lucas's motion to dismiss Plaintiffs claim for violation of freedom of speech is denied;
5. Defendant Lucas's request for qualified immunity is denied;
6. Plaintiff s retaliation claim is dismissed, without leave to amend;
7. This case now proceeds only with Plaintiffs claim against defendant Lucas for violation of Plaintiff s rights to freedom of speech under the First Amendment;
8. Defendant Lucas is ordered to file an Answer to the First Amended Complaint within thirty days of the date of service of this order; and
9. This action is referred back to the Magistrate Judge for further proceedings.
IT IS SO ORDERED.