Opinion
No. 2:17-cv-01657-TLN-DMC
10-28-2019
TRISTAIN CROWDER, also known as Candice Crowder, Plaintiff, v. RALPH DIAZ, et al., Defendants.
ORDER
Plaintiff, a prisoner proceeding with retained counsel, brings this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Currently before the Court are Defendants' Motion to Dismiss and Motion for Misjoinder. (ECF Nos. 27-28.) On August 19, 2019, the magistrate judge filed findings and recommendations herein which were served on the parties and which contained notice to the parties that any objections to the findings and recommendations were to be filed within fourteen (14) days. (ECF No. 38.) No objections to the findings and recommendations have been filed.
Accordingly, the Court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983); see also 28 U.S.C. § 636(b)(1). Having reviewed the file, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge's analysis.
As to the issue of misjoinder, the Court notes that United States v. Johnson is inapplicable to the extent it relies upon the Federal Rules of Criminal Procedure rather than the Federal Rules of Civil Procedure. (ECF No. 38 at 37-38, citing United States v. Johnson, 820 F.2d 1065, 1070 (9th Cir. 1987).) Nevertheless, the Findings and Recommendations appropriately weighed Defendants' concerns regarding potential jury bias and confusion against the substantial threat of harm to Plaintiff, and thus properly analyzed the principles of fundamental fairness and judicial efficiency in recommending the Court deny severance. (ECF No. 38 at 36-40, citing Franklin Fueling Sys. v. Veeder-Root Co., CIV. NO. S-09-580 FCD/JFM, 2009 U.S. Dist. LEXIS 107507 (E.D. Cal. Nov. 17, 2009)); see also Toscano v. Lewis, No. C-12-5893 EMC (pr), 2014 U.S. Dist. LEXIS 27582, *15-23 (N.D. Cal. Mar. 3, 2014). --------
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed August 19, 2019 (ECF No. 38), are adopted in full;
2. Defendants' Motion for Misjoinder (ECF No. 28) is DENIED;
3. Defendants' Motion to Dismiss (ECF No. 27) is GRANTED in part and DENIED in part as follows:
(a) Defendants' Motion to Dismiss Plaintiff's Eighth Amendment claims for failing to satisfy the pleading standards of Rule 8 is DENIED;
(b) Defendants' Motion to Dismiss Plaintiff's Eighth Amendment claims for failing to exhaust her administrative remedies is DENIED;
(c) Defendants' Motion to Dismiss for failure to state an Eighth Amendment claim against Defendant Santos is DENIED;
(d) Defendants' Motion to Dismiss for failure to state an equal protection claim under the Fourteenth Amendment is DENIED with regards to Defendants Hopper, Hadrava, Gibbs, and Farmer;
(e) Defendants' Motion to Dismiss for failure to state an equal protection claim under the Fourteenth Amendment is GRANTED with regards to Defendants Diaz, Santos, Fox, and Tileston;
(f) Defendants' Motion to Dismiss for failure to state a due process claim under the Fourteenth Amendment is GRANTED with regards to Defendants Diaz, Fox, Hadrava, and Santos;
(g) Defendants' Motion to Dismiss for failure to state a First Amendment claim is DENIED with regards to Defendants Cherniss, Ebert, and Gibbs;
(h) Defendants' Motion to Dismiss for failure to state a First Amendment claim is GRANTED with regards to Defendants Fox and Tileston;
(i) Defendants' Motion to Dismiss Plaintiff's claims as barred by the Eleventh Amendment and the doctrine of qualified immunity is DENIED; and
(j) Defendants' Motion to Dismiss Plaintiff's claims for injunctive relief as moot is DENIED;
4. Plaintiff's First Amended Complaint (ECF No. 17) is DISMISSED with leave to amend; and
5. Plaintiff shall file a second amended complaint within 30 days of the date of this Order.
IT IS SO ORDERED. Dated: October 28, 2019
/s/_________
Troy L. Nunley
United States District Judge