Opinion
Case No. 2:19-cv-01285-ODW(JDE)
05-05-2020
TONEY ALFONSO JOHNSON, Plaintiff, v. JACK FEIST, et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the records on file, including the operative Second Amended Complaint (Dkt. 7, "SAC") filed by Plaintiff Tony Alfonso Johnson ("Plaintiff"), Plaintiff's Notice of Election (Dkt. 9), the Motion to Dismiss the SAC (Dkt. 30, "Motion") filed by Defendant Jack Feist, J. Clason, and G. Grieb ("Defendants"), Plaintiff's Opposition to the Motion (Dkt. 34), Defendants' Reply in support of the Motion (Dkt. 37), the Report and Recommendation of the assigned United States Magistrate Judge (Dkt. 39, "Report"), Plaintiff's Objections to the Report (Dkt. 42), and Defendants' Reply to Plaintiffs Objections (Dkt. 43).
The Court has engaged in a de novo review of those portions of the R&R to which objections have been made. The Court accepts the findings and recommendation of the magistrate judge. In addition, the Court denies Plaintiff's request in his Objections to amend his complaint to reassert claims he dropped in his Notice of Election; this denial is without prejudice to Plaintiff filing a motion seeking leave to amend in compliance with Federal Rule of Civil Procedure 15 and Local Civil Rule 15 after he has filed an amended complaint or a notice of election in compliance with the order below, with Defendants having an opportunity to be heard on any such motion.
Therefore, IT IS HEREBY ORDERED that:
1. The Motion (Dkt. 30) is GRANTED in part as follows: (a) the SAC's Fourth Cause of Action against Defendants Feist and Clason is dismissed without prejudice and without leave to amend; and (b) the SAC's First and Third Causes of Action are dismissed with leave to amend;
2. If Plaintiff still desires to pursue retaliation claims based on the First Amendment against Defendants Feist and Clason, he is ordered to file a Third Amended Complaint remedying the deficiencies identified in the Report within 30 days from the date of this Order;
3. Any Third Amended Complaint filed by Plaintiff as permitted by this Order shall bear the docket number of this case, shall be labeled "Third Amended Complaint," shall be complete in and of itself without reference to any other pleading, and shall not include new defendants or new allegations not related to the previously asserted retaliation claims in the SAC;
4. If Plaintiff timely files a Third Amended Complaint, Defendants shall answer or otherwise appropriately respond to such pleading within 21 days of its filing;
5. If Plaintiff no longer wishes to pursue retaliation claims against Feist and Clason, he shall, within 30 days, file a document titled "Notice of Election" stating he elects only to proceed on his Fourth Cause of Action against Grieb and not any other claim against any other defendant; if Plaintiff files such an election, the SAC will proceed solely against Defendant Grieb, who, in that event, is ordered to answer the SAC within 14 days of the filing of such a Notice of Election;
6. If Plaintiff fails to timely file either: (1) a Third Amended Complaint; or (2) a Notice of Election within thirty (30) days of the date of this Order, such a failure will constitute an abandonment of claims against Defendants Clason and Feist; and
7. Final judgment in this action shall reflect the dismissal of the Fourth Cause of Action against Defendants Feist and Clason.
IT IS SO ORDERED. Dated: May 5, 2020
/s/_________
OTIS D. WRIGHT, II
United States District Judge