Opinion
2:16-cv-0830 TLN DB
07-07-2021
GRADY HARRIS, Plaintiff, v. JEFF MACOMBER, et al., Defendants.
ORDER
Troy L. Nunley, United States District Judge
Plaintiff Grady Harris (“Plaintiff”), a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 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 10, 2021, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. (ECF No. 106.) Plaintiff and Defendants Calderon, Cervantes, Fong, Fuller, Munoz, Rose, Thompson, and Williamson (collectively, “Defendants”) have filed objections to the findings and recommendations. (ECF Nos. 107, 110.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this Court has conducted a de novo review of this case. See McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). Having reviewed the file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge's analysis.
Defendants' sole objection to the Findings and Recommendations is that the magistrate judge improperly found Plaintiff stated a claim against newly-added Defendant Velasquez, who is not named in either the original Complaint or First Amended Complaint (“FAC”). (ECF No. 107 (citing ECF Nos. 1, 10).) Defendants argue the Court should decline to find a claim asserted against this new Defendant because Plaintiff failed to seek and obtain leave to add Velasquez as a Defendant pursuant to Federal Rule of Civil Procedure (“Rule”) 15(a)(2). (Id.) While Defendants' argument is meritorious, their objection pertains to portions of the magistrate judge's Screening Order that are not presently before the Court as findings and recommendations. Thus, Defendants may not seek dismissal of Velasquez by way of objecting to the Screening Order, but must instead file a properly noticed motion to dismiss or, in the alternative, motion for judgment on the pleadings. On this basis, Defendants objections are overruled.
The Second Amended Complaint and majority of Defendants' objections refer to the new Defendant as “Valasquez” (see generally ECF Nos 96, 107), but the Findings and Recommendations refer to this party as “Velasquez, ” as does the Court herein.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations filed May 10, 2021 (ECF No. 106) are ADOPTED IN FULL; and
2. Plaintiffs due process claim is DISMISSED without leave to amend. Defendants are directed to respond to the Second Amendment Complaint as set forth in the Findings and Recommendations.
IT IS SO ORDERED.