Opinion
NO. SACV 16-1367-GW (AGR)
09-17-2018
MICHAEL LAWRENCE LHEVAN, Plaintiff, v. TODD SPITZER, et al., Defendant.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the complaint, records on file, the Report and Recommendation of the United States Magistrate Judge ("Report"), the Objections filed by Defendants and Plaintiff's Response, and the Objections filed by Plaintiff and Defendants' Response. The Court has engaged in a de novo review of those portions of the Report to which the parties have objected. The Court accepts the findings and recommendation of the Magistrate Judge except as set forth below.
Defendants' objections are without merit and are overruled.
Plaintiff's objections to the dismissal of his Monell claims 1, 2, 3, 4, 6, 7, 8, 11, 13 and 14 without further leave to amend are overruled. Plaintiff is advised that Monell claims 4 and 11 are dismissed without prejudice under Heck v. Humphrey, 512 U.S. 477 (1994).
With respect to Monell claims 9 and 12, Plaintiff argues that dismissal without further leave to amend is unwarranted because he produced in discovery ACLU documents about the conditions of confinement in the Orange County jail and, in particular, about policies, customs and practices governing denial of a restroom and medical care. The court will therefore dismiss Monell claims 9 and 12 with leave to amend.
Plaintiff is advised that Defendants' motion and the Report address only Monell claims and not claims against individual defendants. See e.g., Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (denial of medical care by individual defendants to pretrial detainees); Galen v. Cnty. of Los Angeles, 477 F.3d 652, 663-64 (9th Cir. 2007) (addressing claim that individuals "deliberately or recklessly misled" the judge and that bail "would not have been unconstitutionally excessive but for" the individuals' misrepresentations).
IT IS ORDERED that (1) Defendants' motion to dismiss the Monell Claims 1, 2, 3, 4, 6, 7, 8, 11, 13 and 14 is granted without further leave to amend; (2) Defendants' motion to dismiss the Monell Claims 9, 10, 12 and 15 is granted with leave to amend; (3) Defendants' motion to dismiss Monell Claim 5 is denied; and (4) Plaintiff is granted leave to file a Fourth Amended Complaint consistent with this Order within 30 days after entry of the order.
If Plaintiff chooses not to file a Fourth Amended Complaint, the court will issue an order for service of the Third Amended Complaint upon the individual defendants in their individual capacity. DATED: September 17, 2018
/s/_________
GEORGE H. WU
United States District Judge