Opinion
No. CV 04-7209-GW(CW)
06-17-2012
JERRY A. BURTON, Plaintiff, v. M. YARBOROUGH, et al., Defendants.
No. CV 04-7209-GW(CW)
Plaintiff has another pending action: Burton v. Haws, No. CV 08-5834-GHK(CW). This Order concerns only the present action.
ORDER ACCEPTING IN PART AND REJECTING IN PART SECOND REPORT
AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b)(1)(C), the court has reviewed the entire record in this action, as well as the Second Report and Recommendation of the United States Magistrate Judge. No objections to the Report and Recommendation have been received.
In light of Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), cert. denied, 80 U.S.L.W. 3462 (U.S. Apr. 30, 2012)(No. 11-834), the court finds that Plaintiff has stated a claim under Fed. R. Civ. P. 8(a) and 12(b)(6) in his fifth cause of action (deliberate indifference re: prison conditions), and that he may be able to amend to state a claim in one or more of three other causes of action, namely the fourth (conspiracy), sixth (due process) and seventh (failure to supervise). On the other hand, the court agrees with the Report and Recommendation that Plaintiff has failed to state a claim or to show that he could successfully amend as to three other causes of action, namely the first (right of association), second (retaliation), and third (deliberate indifference re: retaliation).
It is therefore ORDERED as follows:
1. Defendants' motions to dismiss (docket no. 82, filed November 4, 2009, and docket no. 84, filed November 6, 2009) are granted in part and denied in part.
2. Plaintiff's Fourth Amended Complaint is dismissed with leave to amend as further indicated below.
3. Within thirty (30) days of the filing date of this order, Plaintiff may file either a notice of amendment (indicating that he opts to amend by proceeding on his fifth cause of action alone and deleting his other claims); or (b) a fifth amended complaint (including his fifth cause of action and amended statements of any of the other causes of action noted above as capable of being amended).
4. If Plaintiff does not file a timely response to this order, his action may be subject to dismissal for failure to prosecute.
5. Once Plaintiff files a response to this order the court will issue further orders as appropriate.
____________________________
GEORGE H. WU
United States District Judge