Opinion
Case No. EDCV 19-183-DSF (KK)
07-13-2020
AARON RAISER, Plaintiff, v. CITY OF MURRIETA, ET AL., Defendant(s).
ORDER ACCEPTING AMENDED FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, the relevant records on file, and the Amended Report and Recommendation of the United States Magistrate Judge. The Court has engaged in de novo review of those portions of the Amended Report to which Plaintiff has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED that (1) Defendants' Motion to Dismiss is GRANTED; (2) Claims Two, Three, Five, Eight, Nine, Ten, Eleven, and Twelve in the First Amended Complaint are DISMISSED with prejudice and without leave to amend; (3) all other claims in the First Amended Complaint are DISMISSED with leave to amend; and (4) Plaintiff's Motion for Partial Summary Judgmnet is DENIED as MOOT.
IT IS FURTHER ORDERED THAT within twenty-one (21) days of the service date of this Order, Plaintiff choose one of the following options:
1. Plaintiff may file a Second Amended Complaint to attempt to cure the deficiencies discussed in the Amended Report and Recommendation regarding claims that have not been dismissed with prejudice in this Order. The Clerk of Court is directed to mail Plaintiff a blank Central District civil rights complaint form to use for filing the Second Amended Complaint, which the Court encourages Plaintiff to use.
If Plaintiff chooses to file a Second Amended Complaint, he must clearly designate on the face of the document that it is the "Second Amended Complaint," it must bear the docket number assigned to this case, and it must be retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not include new defendants or allegations that are not reasonably related to the claims asserted in the First Amended Complaint. In addition, the Second Amended Complaint must be complete without reference to the First Amended Complaint, Complaint, or any other pleading, attachment, or document.
An amended complaint supersedes the preceding complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat all preceding complaints as nonexistent. Id. Any claim raised in a preceding complaint and not dismissed with prejudice is waived if it is not raised again in the Second Amended Complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012).
The Court advises Plaintiff that it generally will not be well-disposed toward another dismissal with leave to amend if Plaintiff files a Second Amended Complaint that continues to include claims on which relief cannot be granted. "[A] district court's discretion over amendments is especially broad 'where the court has already given a plaintiff one or more opportunities to amend his complaint.'" Ismail v. Cty. of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 1261. Thus, if Plaintiff files a Second Amended Complaint with claims on which relief cannot be granted, the Second Amended Complaint will be dismissed without leave to amend and with prejudice.
2. Alternatively, 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, which the Court encourages Plaintiff to use if he chooses to voluntarily dismiss the action.
Plaintiff is explicitly cautioned that failure to timely respond to this Order will result in this action being dismissed for failure to state a claim, or for failure to prosecute and/or obey Court orders pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED. DATED: July 13, 2020
/s/_________
Honorable Dale S. Fischer
UNITED STATES DISTRICT JUDGE __________
FULL NAME __________
COMMITTED NAME (if different) __________
FULL ADDRESS INCLUDING NAME OF INSTITUTION __________
PRISON NUMBER (if applicable) __________ PLAINTIFF, v. __________ DEFENDANT(S). CASE NUMBER __________ To be supplied by the Clerk CIVIL RIGHTS COMPLAINT PURSUANT TO (Check one)
[ ] 42 U.S.C. § 1983
[ ] Bivens v. Six Unknown Agents 403 U.S. 388 (1971)
A. PREVIOUS LAWSUITS
1. Have you brought any other lawsuits in a federal court while a prisoner: [ ] Yes [ ] No
2. If your answer to "1." is yes, how many? __________
Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an attached piece of paper using the same outline.)
a. Parties to this previous lawsuit:
Plaintiff __________
Defendants __________
b. Court __________
c. Docket or case number __________
d. Name of judge to whom case was assigned __________
e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it appealed? Is it still pending?) __________
f. Issues raised: __________
g. Approximate date of filing lawsuit: __________
h. Approximate date of disposition __________
B. EXHAUSTION OF ADMINISTRATIVE REMEDIES
1. Is there a grievance procedure available at the institution where the events relating to your current complaint occurred? [ ] Yes [ ] No
2. Have you filed a grievance concerning the facts relating to your current complaint? [ ] Yes [ ] No
If your answer is no, explain why not __________
3. Is the grievance procedure completed? [ ] Yes [ ] No
If your answer is no, explain why not __________
4. Please attach copies of papers related to the grievance procedure.
C. JURISDICTION
This complaint alleges that the civil rights of plaintiff __________(print plaintiffs name) who presently resides at __________(mailing address or place of confinement), were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at __________(institution/city where violation occurred)
on (date or dates) __________(Claim I), __________(Claim II), __________(Claim III).
NOTE: You need not name more than one defendant or allege more than one claim. If you are naming more than five (5) defendants, make a copy of this page to provide the information for additional defendants.
1. Defendant __________(full name of first defendant) resides or works at __________(full address of first defendant) __________(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law: __________
2. Defendant __________(full name of first defendant) resides or works at __________(full address of first defendant) __________(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law: __________
3. Defendant __________(full name of first defendant) resides or works at __________(full address of first defendant) __________(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law: __________
4. Defendant __________(full name of first defendant) resides or works at __________(full address of first defendant) __________(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law: __________
5. Defendant __________(full name of first defendant) resides or works at __________(full address of first defendant) __________(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law: __________
D. CLAIMS*
CLAIM I
The following civil right has been violated:
__________
Supporting Facts: Include all facts you consider important. State the facts clearly, in your own words, and without citing legal authority or argument. Be certain you describe, in separately numbered paragraphs, exactly what each DEFENDANT (by name) did to violate your right.
__________
*If there is more than one claim, describe the additional claim(s) on another attached piece of paper using the same outline.
E. REQUEST FOR RELIEF
I believe that I am entitled to the following specific relief:
__________
__________
(Date)
__________
(Signature of Plaintiff) __________ Plaintiff(s), v. __________ Defendant(s). CASE NUMBER __________
NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c)
PLEASE TAKE NOTICE: (Check one)
[ ] This action is dismissed by the Plaintiff(s) in its entirety.
[ ] The Counterclaim brought by Claimant(s) __________ is dismissed by Claimant(s) in its entirety.
[ ] The Cross-Claim brought by Claimants(s) __________ is dismissed by the Claimant(s) in its entirety.
[ ] The Third-party Claim brought by Claimant(s) __________ is dismissed by the Claimant(s) in its entirety.
[ ] ONLY Defendant(s) __________ is/are dismissed from (check one) [ ] Complaint, [ ] Counterclaim, [ ] Cross-claim, [ ] Third-Party Claim brought by __________.
The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).
__________
Date
__________
Signature of Attorney/Party NOTE: F .R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for summary judgment , whichever first occurs.
F.R.Civ.P. 41(c): Counterclaims , cross-claims & third-party claims may be dismissed before service of a responsive pleading or prior to the beginning of trial.