(PC) Duncan v. California Healthcare Receivership Corp.

Opinion

DIONTAE JOHAN DUNCAN, Case No. 1:20-cv-01288-KES-SKO (PC)

Plaintiff, ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS TO GRANT v. DEFENDANT TAYLOR’S MOTION TO DISMISS RECEIVERSHIP CORP., et al., (Doc. 118) Defendants. Plaintiff Diontae Johan Duncan is proceeding pro se and in forma pauperis in this civil rights action brought 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) and Local Rule 302. On August 9, 2024, the assigned magistrate judge issued findings and recommendations, recommending that defendant Taylor’s motion to dismiss be granted and that plaintiff be given leave to file a further amended complaint to cure the lack of clarity within his second amended complaint. Doc. 118. The magistrate judge advised the parties that the “failure to file objections within the specified time may result in waiver of his rights on appeal.” Id. at 23, citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). On August 30, 2024, plaintiff filed a notice of change of address, indicating he had been released from custody and was residing in Richmond, California. Doc. 119. The findings and recommendations were re-served to plaintiff at his new address on that same date. The time to file objections concerning the findings and recommendations following re-service has now passed without objections being filed. See docket. On September 27, 2024, plaintiff lodged an additional amended complaint, which also suggests non-objection to the findings and recommendations. See Doc. 120. In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of this case. Having carefully reviewed the file, the Court finds the findings and recommendations to be supported by the record and proper analysis as to defendant Taylor’s motion to dismiss the second amended complaint and the recommendation to allow for the filing of a third amended complaint as to all claims. The assigned magistrate judge’s fourth recommendation is accepted so far as lifting the stay on defendants Marciel, Gallienne III, and Grewal’s deadline to file a responsive pleading, however, defendants Marciel, Gallienne III, and Grewal shall not be required to file a responsive pleading until after the magistrate judge has screened plaintiff’s third amended complaint. See 28 U.S.C. § 1915A(a). /// /// /// /// /// /// /// /// /// /// /// /// Accordingly, IT IS HEREBY ORDERED that: 1. Defendant Taylor’s motion to dismiss filed on November 15, 2023, Doc. 101, is GRANTED; 2. Plaintiffs claims against defendant Taylor contained within the second amended complaint filed May 4, 2022, Doc. 52, are DISMISSED with leave to amend; 3. Plaintiff’s lodged amended complaint, Doc. 120, shall be deemed the third amended complaint filed in response to this order’s grant of leave to amend; 4. The stay of the responsive pleading deadline, Doc. 106, is LIFTED; 5. This action is referred to the assigned magistrate judge for screening and subsequent proceedings consistent with this order. □□ □□ SO ORDERED. _ Dated: _ October 11, 2024 4h UNITED STATES DISTRICT JUDGE