Opinion
1:20-cv-00725-AWI-SKO (PC)
11-08-2021
BRYAN WEBB, Plaintiff, v. P. LLAMAS, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION FOR DEFAULT
(DOC. NOS. 14, 27 & 31)
Plaintiff Bryan Webb is a state prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Eastern District of California Local Rule 302.
On December 22, 2020, Defendants filed a motion to dismiss the complaint on the grounds that (1) Plaintiff's claims are barred by the favorable termination rule of Heck v. Humphrey, 512 U.S. 477 (1994), (2) Plaintiff fails to state a cognizable claim of First Amendment retaliation against Defendants, (3) Defendant Saucedo is entitled to absolute immunity, and (4) Defendants are entitled to qualified immunity. Doc. No. 14. On August 23, 2021, Plaintiff filed a motion for default on the grounds that Defendants failed to file a reply to his opposition to their motion to dismiss. Doc. No. 27.
On September 28, 2021, the assigned magistrate judge issued findings and recommendations, recommending that Defendants' motion to dismiss be granted in part and denied in part. Doc. No. 31. The magistrate judge found that the favorable termination rule of Heck v. Humphrey bars Plaintiff's claims regarding a rules violation report and an associated hearing, but not his remaining claims. Id. at 4-7. The magistrate judge further found that Plaintiff states cognizable claims of retaliation against Defendants Fugate, Llamas, and Wilson, but not against Defendant Saucedo. Id. at 6-10. The magistrate judge also found that Defendants failed to show that they are entitled to qualified immunity. Id. at 10. Accordingly, the magistrate judge recommended that Defendant Saucedo and the retaliation claims involving the rules violation report and hearing be dismissed, and that the retaliation claims against Defendants Fugate, Llamas, and Wilson be allowed to proceed. Id. at 11.
With respect to Plaintiff's motion for default, the magistrate judge recommended that the motion be denied because Plaintiff provided no viable basis for entry of default. Id. at 10-11.
The above findings and recommendations were served on the parties and provided them time to file objections thereto. Id. at 11. The parties have not filed any objections, and the time to do so has passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the file, the Court concludes that the findings and recommendations are supported by the record and proper analysis.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations (Doc. No. 31) issued on September 28, 2021 are ADOPTED in full;
2. Plaintiff's motion for entry of default (Doc. No. 27) is DENIED;
3. Defendants' motion to dismiss the complaint (Doc. No. 14) is GRANTED in part and DENIED in part, as specified below:
a. Plaintiff's retaliation claims regarding the July 23, 2019 rules violation report and the July 28, 2019 hearing thereon are DISMISSED;
b. Defendant Saucedo is DISMISSED;
c. Plaintiff's remaining claims of First Amendment retaliation against Defendants Fugate, Llamas, and Wilson may proceed; and
4. This case is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.