Opinion
5:21-cv-00920-JAK (SHK)
12-01-2021
SHANNON KAY LOPEZ, Plaintiff, v. JOAN FRANCES BURGESS, et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
John A. Kronstadt United States District Judge
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint; Joan Frances Burgess' (“Defendant Burgess”) Motions to Dismiss (“MTD”) (“Burgess MTD”); the MTD filed by Deputy District Attorney Michael A. Hestrin (“DA Hestrin”), Deputy District Attorney Sandra J. Kim (“DA Kim”), Deputy District Attorney Carlos Aguilar (“DA Aguilar”), Deputy Sheriff Del Real (“Defendant Del Real”), Deputy Sheriff Beeman (“Defendant Beeman”), Sergeant Grmusha (“Defendant Grmusha”) Sergeant De Loss (“Defendant De Loss”), Deputy Sheriff Bechtold (“Defendant Bechtold”), and Deputy Sheriff Ducoeur (“Defendant Ducoeur”) (collectively “Non-Commissioner Defendants” or “NC Defendants”) (“NC Defendants' MTD”); the relevant records on file; and the Report and Recommendation (“R&R”) of the United States Magistrate Judge. Electronic Case Filing Number (“ECF No.”) 1, Compl.; ECF No. 29, Burgess MTD; ECF No. 37, NC Defendants' MTD; ECF No. 40, R&R. No. objections have been filed. The Court accepts the findings and recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED that: (1) the Burgess MTD [ECF No. 29] is GRANTED; (2) the NC Defendants' MTD [ECF No. 37] is GRANTED; (3) Plaintiff's claims against Defendant Burgess, DA Hestrin, DA Kim, and DA Aguilar are DISMISSED with prejudice; and (4) Plaintiff's claims against all other Defendants are DISMISSED without prejudice and with leave to amend.
IT IS FURTHER ORDERED that, if Plaintiff would like to continue to prosecute this action, Plaintiff shall file a First Amended Complaint (“FAC”) within 21 days of the issuance of this Order. On the first page of any FAC, Plaintiff shall clearly designate that the document is the “First Amended Complaint, ” include the docket number assigned to this case, and write the amended pleading on this Court's CV-066 form, which the Clerk of Court is directed to mail to Plaintiff along with this Order.
In the body of the FAC, Plaintiff shall include all claims that Plaintiff would like to pursue, even if Plaintiff previously stated them in the original Complaint. If Plaintiff does not raise a claim in the FAC, the Court will consider it waived. Plaintiff cannot refer to the original Complaint or any other pleading, attachment, or document to state a claim in the FAC. Plaintiff cannot include in the body of the FAC any new defendants or new allegations that are not reasonably related to the claims asserted in the original Complaint, without leave of the Court.
For the claims that the Court found deficient in the R&R as accepted in this Order, in the FAC Plaintiff shall fix the deficiencies consistent with the Court's Order if Plaintiff wishes to continue litigating those claims. If Plaintiff files a FAC restating deficient claims, the Court may not allow Plaintiff another opportunity to file an amended complaint and instead may dismiss the action. If there are claim(s) that the Court did not find deficient, Plaintiff must still re-plead them in the FAC in their entirety
if Plaintiff seeks to continue litigating those claim(s).
Plaintiff is cautioned that if Plaintiff does not timely file a FAC, this action will be dismissed with or without prejudice for failure to state a claim, failure to prosecute, and/or failure to obey Court orders under Federal Rule of Civil Procedure 41(b).
Dismissal "with prejudice" means that Plaintiff would not be able to bring this action in federal court again, while "without prejudice" means Plaintiff could re-file this action in this Court. If Plaintiff believes more time is necessary to file a FAC, Plaintiff shall request an extension of time from the Court before the 21-day period mentioned above expires. However, an extension will be granted only if Plaintiff demonstrates good cause for needing more time.
Finally, Plaintiff may voluntarily dismiss the action without prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to mail Plaintiff a blank Notice of Dismissal Form.