Opinion
Case No. 2:18-cv-3263-JFW (GJS)
10-09-2019
MARQUISE DeANGELO LOFTIS, Plaintiff v. GARY SALCEDO and NURSE E. GRANT, Defendants.
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, motions, and other documents filed in this action, including the Report and Recommendation of the assigned United States Magistrate Judge. The deadline to file Objections to the Report has passed, and no Objections have been filed with the Court.
Accordingly, IT IS ORDERED that:
(1) The Magistrate Judge's Report and Recommendation is approved and accepted.
(2) Defendants' Motion to Dismiss ("Motion") [Dkt. 32] is GRANTED in part and DENIED in part, pursuant to Fed. R. Civ. P. 12(b)(6), as follows:
(a) the Motion is DENIED as to Plaintiff's Eighth Amendment Excessive Force claim against Defendant Salcedo;
(b) the Motion is GRANTED with respect to Plaintiff's denial of medical care claim against Defendant Grant, and this claim is DISMISSED with leave to amend;
(c) the Motion is GRANTED with respect to Plaintiff's failure to supervise/train claim against Defendant Salcedo, and this claim is DISMISSED with leave to amend;
(d) the Motion is GRANTED with respect to Plaintiff's deliberate indifference to safety claim against Defendant Salcedo, and this claim is DISMISSED without leave to amend;
(3) Plaintiff's claims against the Doe Defendants are dismissed without prejudice;
(4) Plaintiff is granted leave to file a First Amended Complaint consistent with the Report and Recommendation within 30 days of this Order; and
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. In lieu of filing an amended complaint, Plaintiff may voluntarily dismiss the defective claims against Defendants Grant and Salcedo without prejudice, pursuant to Federal Rule of Civil Procedure 41(a), and the case will proceed against Defendant Salcedo of Plaintiff's Eighth Amendment claim. The Clerk of Court is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff to use. --------
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(5) Plaintiff's failure, if any, to timely to file a First Amended Complaint will result in this action proceeding solely on the remaining claims as against the remaining defendant (i.e., the Eighth Amendment Excessive Force claim against Defendant Salcedo) absent further order of the Court.
IT IS SO ORDERED. DATE: October 9, 2019
/s/_________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE