Opinion
1:21-CV-1077 AWI JLT
06-13-2022
BYRON WILLIS, Plaintiff v. CITY OF BAKERSFIELD, et al., Defendants
ORDER ON COUNTY DEFENDANTS' MOTION TO DISMISS
(DOC. NOS. 22)
This is a civil rights lawsuit by Plaintiff Byron Willis. In a prior order, the Court granted a Rule 12(b)(6) motion to dismiss and inter alia dismissed a malicious prosecution claim against Kern County, the Kern County District Attorney's Office, and the Kern County Sheriff's Office (hereinafter “Kern Entities”). See Doc. No. 19. In response to the Court's rulings on the motion to dismiss, Plaintiff filed his First Amended Complaint (“FAC”), which is the active complaint. Although not listed in the style of the case, the Kern Entities are identified as parties in the “Identification of Parties” section, and the second cause of action for malicious prosecution lists the Kern Entities as defendants.
The Kern Entities have filed a second Rule 12(b)(6) motion to dismiss and seek to dismiss the only claim alleged against them, the second cause of action for malicious prosecution. See Doc. No. 22.
Plaintiff has filed a notice of non-opposition to the Kern Entities' motion. See Doc. No. 27. Plaintiff's notice explains that he filed the wrong copy of the FAC, which contained the Kern Entities as defendants. See id. Plaintiff explains that he is not moving forward against the Kern Entities, does not oppose the request to dismiss, but does ask that the dismissal be entered without prejudice. See id. The Kern Entities filed no reply.
After review, the Court accepts that the allegations in the FAC against the Kern Entities were erroneously included. The result is that Plaintiff did not intend to file an amended complaint that pursued claims against the Kern Entities, and, per the Court's dismissal order, the time to amend to include any such claim has passed. In situations where a deadline to amend has passed, the Court converts the dismissal to one without leave to amend. Given the pending motion to dismiss, as well as the FAC that is on the docket, the Court will grant the motion to dismiss and dismiss the second cause of action for malicious prosecution against the Kern Entities without leave to amend.
ORDER
Accordingly, IT IS HEREBY ORDERED that, in light of the clarification in Plaintiff's notice of non-opposition, the Kern Entities' motion to dismiss (Doc. No. 22) is GRANTED and the second cause of action against the Kern Entities are DISMISSED without leave to amend.
IT IS SO ORDERED.