Michael Thomas Doss v. City of Long Beach et al

Filing 36

ORDER Accepting Findings and Recommendation of United States Magistrate Judge, by Judge Valerie Baker Fairbank, re Report and Recommendation (Issued) 30 . (twdb)

o

1

2
3

I HEREBY CERTIFY THAT THIS DOCUMENt WAS SERVED BY \
,. ff'
fiRSt CLASS MAIL PostAGE PREPAID, TO Al4.-"l~ ~ ,\,,,,,"h 't~
• lOR f?ARII~T THEIR RESPECtiVE MOSt RECENt ADDRESS
RECORD IN THIS ACTION ON THIS DATE.

or

DATED:

4

(~·_'..;..l'_I~::o-r

FILED
CLERK, U.S.D.C. SOUTHERN DIVISION

_

JUL - 12011

DEPUTY CLERK

5

6

7
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

9
10
11

MICHAEL THOMAS DOSS,

12
vs.

13
14
15
16

Plaintiff,

CITY OF LONG BEACH
POLICE OFFICER A. RIM, et

Case No, CV 10-7134-VBF (RNB)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

aI.,

Defendants.

17

On May 20, 2011, the assigned Magistrate Judge issued a Report and

18

Recommendation herein recommending that (a) defendants' motion to dismiss be

19

granted with leave to amend with respect to plaintiffs Fourteenth Amendment claim

20

against defendants Birdsall, Rios, and McMahan based on their alleged refusal to

21

provide prompt medical care; (b) defendants' motion to dismiss be denied with

22

respect to plaintiffs Fourth Amendment claim against defendant Rim and his

23

Fourteenth Amendment claim against defendants Birdsall, Rios, and McMahan based

24

on their alleged refusal to allow plaintiffto use the restroom during his interrogation;

25

and (c) plaintiff be ordered, ifhe still desired to pursue his Fourteenth Amendment

26

claim against defendants Birdsall, Rios, and McMahan based on their alleged refusal

27

to provide prompt medical care, to file a First Amended Complaint within (30) days

28

remedying the deficiencies of that claim as discussed in the Report and
1

1 Recommendation.
2

Defendants did not file objections to the Report and Recommendation within

3

the allotted time. On June 6,2011, plaintiff filed a document captioned "Plaintiffs

4

Objection to Magistrate's Report and Recommendation." However, plaintiff stated

5

therein that he wished to accept the Report and Recommendation as to his Fourteenth

6

Amendment claim based on defendants' alleged refusal to provide prompt medical

7

care, and that he would not be filing a First Amended Complaint reasserting that

8

claim. Nevertheless, plaintiff stated that he "would like to object to, and revisit the

9

issue ofthe time bar," which the Magistrate Judge had referenced in footnote 5 ofthe

10

May 20, 2011 Report and Recommendation. Plaintiff proceeded to set forth his

11

position on the time bar issue, supported by attached exhibits.

12

The time bar issue had come up earlier in the case. After screening the

13

Complaint prior to ordering service in accordance with 28 U.S.C. §§ 1915(e)(2) and

14

1915A(b), the Magistrate Judge had found that the Complaint failed to state a federal

15

civil rights claim on which relief might be granted in that it appeared from the face

16

of the Complaint that plaintiffs claims were time-barred.

17

Magistrate Judge had issued an initial Report and Recommendation in which he

18

recommended that the Complaint be dismissed without leave to amend and that

19

Judgment be entered dismissing this action with prejudice. However, after duly

20

considering plaintiffs ensuing objections to the Report and Recommendation, which

21

the Magistrate Judge construed as an attempt to invoke the equitable tolling doctrine

22

based on difficulties that plaintiffhad encountered pursuing his claims because ofhis

23

custodial status, the Magistrate Judge concluded that the time bar issue was not ripe

24

for adjudication at the screening stage of the proceedings.

25

November 3,2010, the Magistrate Judge issued an order vacating the October 5,2010

26

Report and Recommendation.

27
28

On that basis, the

Accordingly, on

In footnote 5 ofthe May 20,2011 Report and Recommendation, the Magistrate
Judge stated the following:
2

1

The Court notes that, in their Motion, defendants have not asserted that

2

plaintiff's claims are time-barred. However, the Court previously has

3

found only that the time bar issue was not yet ripe for adjudication.

4

Accordingly, ifplaintiffchooses to file a First Amended Complaint, and

5

ifhe is contending that he is entitled to equitable tolling, plaintiffshould

6

pleadfacts to support that he acted in a "reasonable and good faith "

7

effort to pursue his claims. See. e.g.. Finkv. Shedler. 192 F.3d 911,916

8

(9th Cir. 1999).

9
10

Since defendants did not raise the time bar issue in their Motion to Dismiss,

11

and since the May 20,2011 Report and Recommendation contained no finding on the

12 time bar issue, there is no need for the Court to address that issue at this time. The
13

Court also notes that, in deciding a motion to dismiss pursuant to Rule 12(b)(6), a

14 Court may not look outside the pleadings without converting the motion into a motion
15

for summaryjudgment. See Anderson v. Angelone, 86 FJd 932, 934 (9th Cir. 1996).

16 Thus, none of plaintiffs allegations regarding the time bar issue in his "objection"
17
18

to the Report and Recommendation is properly before the Court at this time.
Having reviewed all the records and files herein, and the Report and

19 Recommendation ofthe United States Magistrate Judge, pursuant to 28 U.S.C. § 636,
20

the Court accepts the findings and recommendation of the Magistrate Judge.

21

However, the recommendation that plaintiffbe afforded thirty (30) days to rectify the

22

deficiencies of his Complaint with respect to his Fourteenth Amendment claim

23

against defendants Birdsall, Rios, and McMahan based on their alleged refusal to

24 provide prompt medical care has now been rendered moot by plaintiffs statement that
25

he does not intend to file a First Amended Complaint reasserting that claim.

26

IT THEREFORE IS ORDERED THAT (1) defendants' motion to dismiss is

27

granted with respect to plaintiffs Fourteenth Amendment claim against defendants

28

Birdsall, Rios, and McMahan based on their alleged refusal to provide prompt
3

~

1
j
I

!
[

1 medical care, and that claim is dismissed without prejudice; (2) defendants' motion
2

to dismiss is denied with respect to plaintiffs Fourth Amendment claim against

3

defendant Rim and his Fourteenth Amendment claim against defendants Birdsall,

4

Rios,. and McMahan based on their alleged refusal to allow plaintiff to use the

5

restroom during his interrogation; and (3) within thirty (30) days of the service date

6

ofthis Order, defendants shall file an Answer to plaintiffs Fourth Amendment claim

7

against defendant Rim and his Fourteenth Amendment claim against defendants

8

Birdsall, Rios, and McMahan based on their alleged refusal to allow plaintiff to use

9

the restroom during his interrogation.

10

11

DATED:

June 29,2011

\

~6Jbv~

12

13

VALERIE BAKER FAIRBANK

14

,UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22

23
24
25

26
27
28
4