Opinion
Case No. CV 15-7911 R (SS)
09-09-2016
BENITO MARQUEZ, Plaintiff, v. L. McEWEN, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint in the above-captioned matter, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. The time for filing Objections to the Report and Recommendation has passed and no Objections have been received. Accordingly, the Court accepts and adopts the findings, conclusions and recommendations of the Magistrate Judge, amended as follows.
Following the issuance of the Report and Recommendation, Plaintiff filed a Notice of Voluntary Dismissal of his claims against Warden McEwen. Accordingly, Defendants' Motion to Dismiss the claims against Warden McEwen and the Magistrate Judge's recommendations pertaining to that Defendant are now moot.
Accordingly, IT IS ORDERED THAT:
1. Defendants' Motion to Dismiss the First Amended Complaint is DENIED.
2. Defendants' Motion to Dismiss is DENIED to the extent that it is based on Plaintiff's alleged failure to exhaust, but without prejudice to reasserting the defense on summary judgment.
3. Defendants' Motion to Dismiss is DENIED to the extent that it seeks dismissal of the claims against Officer Aguirre and Dr. Fitter for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
4. Defendants' Motion to Dismiss is DENIED AS MOOT to the extent that it seeks dismissal of the supervisory liability claim against Warden McEwen for failure to state a claim pursuant to Rule 12(b)(6).
5. Defendants' Motion to Dismiss is DENIED to the extent that it is based on Defendants' claims of qualified immunity, but without prejudice to reasserting the defense on summary judgment.
6. Defendants Officer Aguirre and Dr. Fitter are ORDERED to file Answers to the First Amended Complaint, as amended by the dismissal of the claims against Warden McEwen, within fourteen days of the date of this Order.
The Clerk shall serve copies of this Order by United States mail on Plaintiff and on counsel for Defendants. DATED: September 9, 2016
/s/_________
MANUEL L. REAL
UNITED STATES DISTRICT JUDGE