Christopher Lilburne Collins v. Roger Barber et al

Filing 90

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge John F. Walter for Report and Recommendation (Issued) 88 : The Court hereby dismisses the TAC and this action with prejudice for the reasons stated in the Report and Recommendation. (See document for details.) LET JUDGMENT BE ENTERED ACCORDINGLY. (rla)

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FILED SOUTHERNQIVISION
CLERK, U.S. DISTRICT COUAl
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III£REBY CERTIFY THAT THIS DOCUMENT WAS SERVED BY, . <I, fJ
FIRST CLASS MAIL POSTAGE PREPAID, T8 Abb SIlIlPlSR t\?\wVtl<f"1"
-l+}R Pf,R'fIE5) AT THEIR RESPECTIVE MOST RECENT ADDRESS OF
RECORD IN THIS ACTION ON THIS DATE.
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DATED:

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.202012

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CENTRAL..QISTRICT OF CALIFORNIA
BY
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DEPurV

DEPUTY CLERK

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CHRISTOPHER "LILBURNE"
COLLINS,

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Plaintiff,

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Case No. CV 10-9614-JFW (JPR)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE

vs.
ROGER BARBER et al.,

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Defendants.

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Pursuant to 28 U.S.C.

§

636, the Court has reviewed the

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Third Amended Complaint ("TAC"), all the records and files of

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this case, and the Report and Recommendation of the U.S.

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Magistrate Judge with respect to Defendants' motions to dismiss.

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On February 28, 2012, Plaintiff filed objections to the Report

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and Recommendation, which he styled as "Motion in Opposition Per

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§

636(b) (1) (c)."

Most of Plaintiff's objections are

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the same as those he raised in opposition to the Defendants'

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motions to dismiss; to the extent they are not, the Court

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addresses them below.

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findings, conclusions, and recommendations of the Magistrate

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Judge.

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prejudice for the reasons stated in the Report and

The Court concurs with and adopts the

The Court hereby dismisses the TAC and this action with

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1 RecommEmdation.

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In his "Motion in Opposition," which like Plaintiff's

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earlier pleadings is at times difficult to understand, Plaintiff

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appears to complain that contrary to the Magistrate Judge's

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finding, he did preserve and raise Equal Protection claims

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against the Defendants in the TAC.

(Opp'n at 2.)

Perhaps the

7 Magistrate Judge thought those claims had been abandoned because,
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as with all three prior complaints, nowhere in the TAC does

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Plaintiff allege that he was intentionally treated differently

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from others similarly situated and that there was no rational

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basis for the different treatment.

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Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d

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1060 (2000).

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occasion" urinated in public at the park and created other

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disturbances provides the rational basis for any different

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treatment he received.

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778, 783 n.1 (9th Cir. 1997)

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out of court" if he "plead[s] facts which establish that he

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cannot prevail on his [constitutional] claim.").l

See viII. of Willowbrook v.

Plaintiff's admissions in the TAC that he had "on

See Weisbuch v. Cnty. of L.A., 119 F.3d
("[A] plaintiff may plead [him]self

As previously

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of a suspect class - ex-felons - and therefore subject to a

22 higher level of scrutiny also fails.
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F.3d 1176, 1179 (9th Cir. 1999)

See Rodriguez v. Cook, 169

(prisoners not suspect class);

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IThroughout his "Opposition" Plaintiff seems to assert that
by relying on the principle of law underlying Weisbuch and other
cases, the Court is somehow raising a qualified immunity defense
for Defendant Torres. Instead, the Court simply relies on facts
that Plaintiff himself pleaded to find that he cannot state a
claim upon which relief might be granted.
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1 United States v. Rosales-Garay, 283 F.3d 1200, 1203 n.4 (10th

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Cir. 2002)

(ex-felons not suspect class); united States v.

Jester, 139 F.3d 1168, 1171 (7th Cir. 1998)

(same).

Accordingly,

any alleged violations of the Equal Protection Clause fail to
state a claim upon which relief might be granted.
Plaintiff alleges that the TAC raised § 1985 and 1986 claims

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that the Report and Recommendation did not even address.

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at 2.)

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extent Plaintiff continued to make allegations that the Court had

(Opp'n

In fact, the Report and Recommendation notes that to the

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already dismissed without leave to amend, the Report would not

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discuss them.

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2011, specifically dismissed without leave to amend "the section

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1985(2) and 1985(3) claims" and "the section 1986 claim"

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at 33-34) on the ground that the underlying theories behind the

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claims were fatally flawed (id. at 31-32).

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he has not pleaded any new facts in the TAC, and his legal

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theories have not changed either.

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barred from raising any such claims in the TAC, no matter who the

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defendant.

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(Report at 5.)

The Court's Order of September 12,

(Order

As Plaintiff admits,

Accordingly, Plaintiff was

IT THEREFORE IS ORDERED that the TAC is dismissed for the

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reasons stated in the Report and Recommendation and this action

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is dismissed with prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: March 19, 2012

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JUDGE

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