Opinion
2:23-cv-10235-SB (DTB)
05-15-2024
DIJON BERNARD, Plaintiff, v. SMART TRANSPORTATION DIVISION, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
STANLEY BLUMENFELD, JR., United States District Judge
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, all the records and files herein, and the Report and Recommendation (Report) of the United States Magistrate Judge. Plaintiff's Objections and Defendant's Response to Objections to the Report have been filed herein.
Plaintiff's objections do not address the central finding in the Report that he failed to file his lawsuit within 90 days of receiving the EEOC right to sue letter. Instead, Plaintiff briefly argues the merits of his case and conclusorily states that he “should have the right to seek damages under this cause of action.” Because Plaintiff fails to address the fact that his Title VII claim is time barred, his objection is overruled and his request for dismissal without prejudice is denied. Plaintiff's other objections are not directed to the Report. In one, he provides his reasoning for filing in state court, which was not at issue in the Report or motion to dismiss. In the other, he asks the Court to explain what the Report's reference to a “non-title VII claim . . . pertains to.” The Report's reference to non-Title VII claims refers to his claims under the Rehabilitation Act, California Fair Employment and Housing Act, and 42 U.S.C. § 1981, which the Report recommends dismissing without prejudice.
Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and accepts the findings, conclusions and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that Defendant's Motion is granted in part and denied in part as follows: Plaintiff's Title VII claims are dismissed with prejudice and without leave to amend; Plaintiff's remaining claims are dismissed without prejudice and with leave to amend. Plaintiff is ORDERED, if he still desires to pursue his non-Title VII claims, to file a First Amended Complaint within 30 days of the date of this Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge.
If Plaintiff chooses to file a First Amended Complaint, it should bear the case number assigned in this case; be labeled “First Amended Complaint”; and be complete in and of itself without reference to any other pleading, attachment, or document.