Opinion
Case No. CV 11-5407-PSG (JPR)
11-13-2014
FLOYD HILLS NELSON et al., Plaintiffs, v. CITY OF LOS ANGELES et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE
The Court has reviewed the First Amended Complaint, records on file, and Report and Recommendation of U.S. Magistrate Judge regarding the Motion to Dismiss filed by Defendants Charles Beck, Carmen A. Trutanich, Antonio Villaraigosa, John Mack, John Izzo, Stuart Lomax, Anthony Avila, Tracey Benjamin, Charles Bennett, Robert Binder, Joe P. Callian, Veronica Conrado, Jason De La Cova, David Friedrich, Dean Gizzi, Richard Guzman, Diana Herron, Robert Kraus, Jeff Nolte, Richard Plows, Gustavo Ramirez, Randy Rico, and Richard Ulley ("City Defendants"). See 28 U.S.C. § 636. No objections to the Report and Recommendation have been filed. The Court accepts the findings and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that City Defendants' motion to dismiss is granted in part and denied in part and Plaintiffs' motion to amend is granted in part and denied in part, as follows:
(1) Plaintiffs may proceed on the FAC's claims that (a) Defendants Nolte, Ramirez, and Herron used excessive force under the Fourth Amendment by shooting at Plaintiffs and (b) an officer (Defendant Callian) used excessive force under the Fourth Amendment against Plaintiff Harris by kicking him in the face. Plaintiffs may file an amended complaint alleging those claims as well as that Defendants Friedrich and Herron failed to intervene to prevent Nolte and Ramirez from continuing to shoot at Plaintiffs.
(2) Dismissal of Plaintiffs' claims based on municipal liability and the City Council's indemnification policy is with leave to amend.
(3) The remainder of Plaintiffs' claims against City Defendants are dismissed with prejudice.
(4) Defendants Benjamin, De La Cova, Conrado, Kraus, Ulley, Lomax, Izzo, Donald Walthers, Larry Chamberlain, Steve Cooley, John K. Spillane, Curtis Hazell, and Richard Doyle are dismissed from this action because Plaintiffs have voluntarily dismissed all claims against them.
(5) After notice to Plaintiffs, Defendants William
J. Bratton, Adam Bircovici, and Larry A. Waldie are dismissed under Federal Rule of Civil Procedure 4(m) because Plaintiffs have failed to effect service on them in the more than two and a half years since the FAC was ordered served.
Plaintiffs may not file an amended complaint, however, until the other four pending motions to dismiss, one each filed by Defendant Alexander Yim, a group of County Defendants, Defendants George Lavey and Tiffany Allen, and Defendant William Gilbert, have been adjudicated.
IT IS SO ORDERED DATED: November 13, 2014
/s/_________
PHILIP S. GUTIERREZ
U.S. DISTRICT JUDGE