Endsley v. Luna

Full title: MARC ANTHONY LOWELL ENDSLEY, Plaintiff, v. OCTAVIO LUNA, NIRBHAY SINGH…

Court: United States District Court, Ninth Circuit, California, C.D. California

Date published: Mar 23, 2009

CV 06-06961 DSF (SS) (C.D. Cal. Mar. 23, 2009)

Opinion

MARC ANTHONY LOWELL ENDSLEY, Plaintiff, v. OCTAVIO LUNA, NIRBHAY SINGH, JON BENSON, DENISE ARMAS-CARL, MILLICENT LOYARTE, JONATHAN MONROE, JIM BIRKS, ROY BELLAMY, ED SIREGAR AND JENNIFER ATKINS, Defendants. No. CV 06-06961 DSF (SS) United States District Court, C.D. California. March 23, 2009

          ORDER ADOPTING AND MODIFYING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          DALE S. FISCHER, District Judge.

         Pursuant to 28 U.S.C. § 636, the Court has reviewed the Third Amended Complaint, all of the records and files herein, the Magistrate Judge's Report and Recommendation, and Plaintiff's and Defendants' Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge, except with the modifications stated below:

         Accordingly, IT IS ORDERED THAT:

         1. Defendants' Motions to Dismiss with respect to Plaintiff's claim based on his treatment in the "Refusal Room" are DENIED. Plaintiff's allegations adequately state a claim based on the Fourteenth Amendment's prohibition against punishment of a civil detainee. Hydrick v. Hunter , 500 F.3d 978, 994 (9th Cir. 2007).

         2. Defendants' Motions to Dismiss are GRANTED with respect to Plaintiff's claims brought pursuant to the Americans with Disabilities Act ("ADA") against the named individual defendants. Plaintiff may only sue the state or a state agency under Title II of the ADA. Miranda B. v. Kitzhaber , 328 F.3d 1181, 1184-85 (9th Cir. 2003) (per curiam). However, Plaintiff is granted leave to amend this claim.

         If Plaintiff still wishes to pursue his ADA claim, he is granted 30 days from the date of this Order within which to file a Fourth Amended Complaint, curing the defects in the Third Amended Complaint as described in the Report and Recommendation and in this Order. The Fourth Amended Complaint, if any, shall be complete in itself and shall bear both the designation "Fourth Amended Complaint" and the case number assigned to this action. It shall not refer in any manner to the prior complaints. Each page of the Fourth Amended Complaint must be consecutively numbered. The Fourth Amended Complaint must contain each claim that Plaintiff intends to pursue in this action.

         If Plaintiff does not file a Fourth Amended Complaint within 30 days of the date of this Order, the Court will proceed on only the surviving claims in the Third Amended Complaint. Plaintiff must either file a Fourth Amended Complaint or a "Notice" that he does not intend to file a Fourth Amended Complaint within 30 days of the date of this Order and intends to stand on the Third Amended Complaint.

         3. The Court notes that, pursuant to the United States Supreme Court's decision in Pearson v. Callahan , 555 U.S. ___, 129 S.Ct. 808 (2009), this Court is no longer required to determine whether the facts alleged establish a constitutional violation before proceeding to the second prong of the Saucier analysis.

         4. Defendants' Motions to Dismiss are DENIED in all other respects.

         5. All claims against Defendant Singh are dismissed without prejudice for Plaintiff's failure to effect service upon Defendant Singh.

         6. The Clerk shall serve copies of this Order by United States mail on Plaintiff and on counsel for Defendants.