Opinion
5:20-cv-02027-MCS (SHK)
03-11-2022
JOSE LUIS MARTINEZ, Plaintiff, v. RALPH DIAZ, et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE MARK C. SCARSI, UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, the relevant records on file, and the Report and Recommendation (“R&R”) of the United States Magistrate Judge. The Court has engaged in de novo review of those portions of the Report to which Plaintiff Jose Luis Martinez (“Plaintiff”) has objected. The Court does not find Plaintiff's objections persuasive. Therefore, the Court accepts the findings and recommendation of the Magistrate Judge, with amendments unrelated to Plaintiff's objections.
The R&R was unclear about which, if any, claims against Doe Defendants 1-10 survived. Therefore, the Court amends the R&R to clarify that the group of Officer Defendants, against whom Plaintiff's Fourth Amendment and Fourteenth Amendment Equal Protection claims, the corresponding Bane Act claim, and the corresponding Ralph Act claim may proceed, includes Doe Defendants 1-10.
Thus, lines 14-21, page 2 of the R&R are amended to read as follows:
Plaintiff alleges claims against the following individuals as defendants related to the search incident (collectively, “Officer Defendants”), in their individual capacities: Does 1-50, whom Plaintiff identifies as “Correctional Officers involved in mass night raid[, ]” “correctional sergeant[s]” “(Unknown) Sanders” and “(Unknown) Frias”; and correctional officers “(Unknown) Nunez”, “(Unknown) Vance”, “(Unknown) Montgomery”, “(Unknown) Strippling”, “(Unknown) Rossolio”, “(Unknown) Wright”, “(Unknown) Landry”, “(Unknown) Allen”, “P. Kuntz” (“Kuntz”), “(Unknown) Messerli”, and B. Wilson (“Wilson”). Id. at 5-6 (capitalization normalized).
The italicization denotes content not originally appearing in the R&R that is added by the amendment. The italicization does not appear in any final version of the R&R.
Electronic Case Filing Number 17, R&R at 2.
Additionally, the Court amends the R&R by striking lines 5 and 6 on page 3 and removing the separate reference to “the Doe Defendants” or “Does” at the following locations: line 7, page 3; line 7, page 4; line 8, page 6; and line 4, page 14. These changes will remove inconsistencies where Doe Defendants are referred to as separate from the Officer Defendant subgroup.
IT IS THEREFORE ORDERED the Report and Recommendation of the Magistrate Judge is ACCEPTED with the above discussed amendments and that all claims in Plaintiff's Complaint except for the Fourth Amendment and Fourteenth Amendment Equal Protection claims, the corresponding Bane Act claim, and the corresponding Ralph Act claim against Defendants Does 1-10; correctional sergeants (Unknown) Sanders and (Unknown) Frias; and correctional officers 3 (Unknown) Nunez, (Unknown) Vance, (Unknown) Montgomery, (Unknown) Strippling, (Unknown) Rossolio, (Unknown) Wright, (Unknown) Landry, (Unknown) Allen, Kuntz, (Unknown) Messerli, and Wilson are DISMISSED without prejudice and without leave to amend. 4