Opinion
2:18-cv-02342-JGB-JC
04-09-2024
MONA SALCIDA MURILLO, formerly known as Ramon Murillo, Plaintiff, v. D. GODFREY, et al., Defendants.
ORDER ACCEPTING FINDINGS,CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
[DOCKET NOS. 100, 110]
HONORABLE JESUS G. BERNAL UNITED STATES DISTRICT JUDGE
The Court has conducted the review required by 28 U.S.C. § 636 and accepts the findings, conclusions and recommendation of the Magistrate Judge reflected in the November 30, 2023 Report and Recommendation of United States Magistrate Judge (“Report and Recommendation”), but - in light of Plaintiff's filing of “Plaintiff['s] Intent to Proceed Solely on Claims Not Dismiss[ed] by the Magistrate Judge” (“Notice of Intent”) and the contents thereof - modifies this Order Accepting the Report and Recommendation accordingly:
IT IS HEREBY ORDERED:
1 Plaintiff's Motion for Permission to File Surreply (Docket No. 110) is granted.
2. Plaintiff's Request for Appointment of Counsel (Docket No. 106) is denied without prejudice.
3. Plaintiff's Motion for Judicial Notice (Docket No 106) is granted as to Exhibits 1-9 and denied as to Exhibits 10-15.
4. Claim Eight and all claims against Defendants in their official capacities in the Third Amended Complaint are deemed withdrawn and dismissed.
5. Defendants' Motion to Dismiss Portions of Plaintiff's Third Amended Complaint and for Severance of Defendant Romero (“Motion to Dismiss”) (Docket No. 100) is granted in part and denied part as follows:
a. Claim Three as against defendant C. Ramirez is dismissed without prejudice;
b. Claim Four, to the extent predicated on Eighth Amendment deliberate indifference, is dismissed without prejudice;
c. Claim Five is dismissed without prejudice;
d. Claim Seven as against defendants Wingfield and Corral is dismissed without prejudice;
e. Claim Seven as against defendant Davis, to the extent
predicated on Eighth Amendment deliberative indifference, is dismissed without prejudice; and f. the Motion to Dismiss is otherwise denied.
As explained in the Report and Recommendation, there has been some ambiguity in the record as to whether Plaintiff intended to continue to proceed with this action as against Defendant C. Ramirez, who is named as a Defendant in only Claim Three, but who has not been served and has not appeared. (See Report and Recommendation at 9 n.12; Report and Recommendation at 20 n.16). Allowing for the possibility that Plaintiff intended to proceed against such Defendant, the Report and Recommendation recommended dismissal of only the Eighth Amendment deliberate indifference predicate for Claim Three as against C. Ramirez, but did not recommend dismissal of the First Amendment retaliation and Eighth Amendment excessive force predicates for Claim Three as against him. However, in light of the contents of Plaintiff's Notice of Intent - which, notwithstanding the foregoing - omits reference to C. Ramirez as a Defendant in Claim Three and otherwise, the Court construes this to mean that Plaintiff does not wish to proceed as against C. Ramirez, and accordingly dismisses the entirety of Claim Three as against such Defendant without prejudice.
6. In light of the substance of Plaintiff's Notice of Intent, this action will proceed only on the following claims against the following six Defendants as specified below: Sgt. D. Godfrey, Correctional Officer (C/O) Wingfield (erroneously sued as Winfield or Windfield), C/O Corral, C/O N. Romero, Lieutenant Varella (erroneosly sued as “Verla” or “Valenero”), and Sergeant Davis, and all other claims, predicates, and Defendants are dismissed from this action without prejudice:
K. Godfrey/the Estate of D. Godfrey has appeared for Sgt. Godfrey, who is deceased. (See Docket No. 64).
Although Defendant Corral's last name is Ramirez, he has been referred to as Defendant Corral to avoid confusion with Defendant C. Ramirez, a separate Defendant. (See Report and Recommendation at 9 n.12).
a. Claim One - a First Amendment retaliation claim against Defendants Godfrey and Wingfield;
b. Claim Two - Eighth Amendment Excessive Force, Eighth Amendment Deliberate Indifference, and First Amendment Retaliation predicates against Defendants Godfrey and Wingfield;
c. Claim Three - Eighth Amendment Excessive Force, Eighth Amendment Deliberate Indifference, and First Amendment Retaliation predicates against Defendant Corral;
d. Claim Four - First Amendment Retaliation and Eighth Amendment Excessive Force predicates against N. Romero;
e. Claim Six - a First Amendment Retaliation claim against
Defendant Varela; and
f. Claim Seven - First Amendment Retaliation and Eighth Amendment excessive force predicates against Defendant Davis.
7. The remaining Defendants shall file an Answer to the remaining portions of the Third Amended Complaint within fourteen (14) days.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order on Plaintiff and counsel for Defendants.
IT IS SO ORDERED.