Opinion
Case No. 2:17-cv-06426-R (JDE)
09-24-2018
T.D. YOUNG, Plaintiff, v. CHAPLAIN JOHN, Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the records on file, including the complaint (Dkt. 1) filed by Plaintiff T.D. Young ("Plaintiff"), the Motion to Dismiss the complaint (Dkt. 23, "Motion") filed by defendant John ("Defendant"), Plaintiff's Opposition to the Motion (Dkt. 25), Defendant's Reply (Dkt. 26), the Report and Recommendation of the assigned United States Magistrate Judge (Dkt. 28), and the Objections filed by Defendant (Dkt. 30). The Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made.
In particular, the Court notes that Defendant objects to: (1) the Report's reference to "state law claims asserted in the Complaint," arguing no state law claims are asserted in the complaint or referenced in the analysis of the Report; and (2) the Report "to the extent it allows Plaintiff to proceed against Defendant in his official capacity." Dkt. 30 at 3-4. With respect to state law claims, contrary to Defendant's objections, the complaint does assert that the conduct alleged "constituted an Assault and Battery under State Law," (Dkt. 1 at 8), and the Report did reference that language in its analysis (Dkt. 28 at 4). As Defendant did not move to dismiss the state law claims, the Report appropriately did not address those claims. With respect to official capacity claims, as Defendant did not move to dismiss official capacity claims, such claims were not addressed in the Report. However, the Order Directing Service as to Defendant (Dkt. 10) only permitted service of process upon Defendant in his individual, not official, capacity, so the individual capacity claims are the only claims upon which Plaintiff is authorized to proceed.
Therefore, IT IS HEREBY ORDERED that:
1. The Report and Recommendation is approved and accepted;
2. The Motion is GRANTED as to Plaintiff's First and Fourteenth Amendment claims; Plaintiff's First Amendment and equal protection claims are dismissed with leave to amend, and Plaintiff's substantive due process claims is dismissed without leave to amend;
3. The Motion is DENIED as to Plaintiff's claim under the Eighth Amendment;
4. If Plaintiff still desires to pursue either of the claims that have been dismissed with leave to amend, Plaintiff shall file a First Amended Complaint remedying the defects set forth above within thirty (30) days of the date this Order is signed, labeled "First Amended Complaint," bearing the docket number assigned to this case, without reference to any other pleading, attachment or document;
5. If Plaintiff does not file a First Amended Complaint within thirty (30) days of the date this Order is signed, the Court and the parties will proceed only on the remaining Eighth Amendment and state law claims in the complaint, with Defendant in that event ordered to serve and file an answer to those claims within thirty (30) days from the date Plaintiff's time to file a First Amended Complaint has run, that is, sixty (60) days from the date of this Order.Dated: September 24, 2018
/s/_________
MANUEL L. REAL
United States District Judge