Opinion
Case No. 2:20-cv-00209-DOC (GJS)
01-08-2021
TRISTIN D. KING, Plaintiff v. JAMAR R. WILLIAMS, Defendant.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, all pleadings and other documents filed in this action, including the Report and Recommendation (Dkt. 21, "Report") of the assigned United States Magistrate Judge. No objections to the Report have been filed within the time allowed. Having completed its review, the Court accepts the findings and recommendations set forth in the Report.
Accordingly, IT IS ORDERED that:
(1) Defendant's Motion to Dismiss is DENIED in PART and GRANTED in PART, pursuant to Fed. R. Civ. P. 12(b)(6), as follows:
(a) the Motion is GRANTED with respect to Plaintiff's First Amendment retaliation claim and this claim is dismissed with leave to amend;
(b) the Motion is GRANTED with respect to Plaintiff's Eighth Amendment Excessive Force claim and this claim is dismissed with leave to amend;
(c) the Motion is DENIED with respect to Plaintiff's Eighth Amendment Deliberate Indifference to Safety Claim; and
(2) Plaintiff is GRANTED leave to file a First Amended Complaint consistent with the Report and Recommendation and this Order or a notice of voluntary dismissal dismissing his defective claims within thirty (30) days of this Order;
If Plaintiff chooses to file a First Amended Complaint, Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint," it must bear the docket number assigned to this case, and it must be retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not include new defendants or new allegations that are not reasonably related to the claims asserted in the FAC. In addition, the First Amended Complaint must be complete without reference to the Complaint, or any other pleading, attachment, or document. Alternatively, Plaintiff may voluntarily dismiss the defective claims against Defendant Williams without prejudice, pursuant to Federal Rule of Civil Procedure 41(a) and proceed solely on his deliberate indifference to safety claim. The Clerk of Court is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff to use. --------
(3) If Plaintiff fails to file a First Amended Complaint this action will proceed solely on the remaining claim against Defendant Williams for an Eighth Amendment Deliberate Indifference to Safety violation. DATE: January 8, 2021
/s/_________
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE