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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1 2 3 FILED SOUTHERNQIVISION CLERK, U.S. DISTRICT COUAl 0 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. o DATED: ~. .202012 \'2.-- 4 CENTRAL..QISTRICT OF CALIFORNIA BY r~ DEPurV DEPUTY CLERK I 'V 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 CHRISTOPHER "LILBURNE" COLLINS, 11 Plaintiff, 12 13 Case No. CV 10-9614-JFW (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE vs. ROGER BARBER et al., 14 Defendants. 15 16 Pursuant to 28 U.S.C. § 636, the Court has reviewed the 17 Third Amended Complaint ("TAC"), all the records and files of 18 this case, and the Report and Recommendation of the U.S. 19 Magistrate Judge with respect to Defendants' motions to dismiss. 20 On February 28, 2012, Plaintiff filed objections to the Report 21 and Recommendation, which he styled as "Motion in Opposition Per 22 22 U.S.C.A. § 636(b) (1) (c)." Most of Plaintiff's objections are 23 the same as those he raised in opposition to the Defendants' 24 motions to dismiss; to the extent they are not, the Court 25 addresses them below. 26 findings, conclusions, and recommendations of the Magistrate 27 Judge. 28 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 1 1 RecommEmdation. 2 In his "Motion in Opposition," which like Plaintiff's 3 earlier pleadings is at times difficult to understand, Plaintiff 4 appears to complain that contrary to the Magistrate Judge's 5 finding, he did preserve and raise Equal Protection claims 6 against the Defendants in the TAC. (Opp'n at 2.) Perhaps the 7 Magistrate Judge thought those claims had been abandoned because, 8 as with all three prior complaints, nowhere in the TAC does 9 Plaintiff allege that he was intentionally treated differently 10 from others similarly situated and that there was no rational 11 basis for the different treatment. 12 Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d 13 1060 (2000). 14 occasion" urinated in public at the park and created other 15 disturbances provides the rational basis for any different 16 treatment he received. 17 778, 783 n.1 (9th Cir. 1997) 18 out of court" if he "plead[s] facts which establish that he 19 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 20 explained to Plaintiff, any attempt to claim that he is a member 21 of a suspect class - ex-felons - and therefore subject to a 22 higher level of scrutiny also fails. 23 F.3d 1176, 1179 (9th Cir. 1999) See Rodriguez v. Cook, 169 (prisoners not suspect class); 24 25 26 27 28 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. 2 1 United States v. Rosales-Garay, 283 F.3d 1200, 1203 n.4 (10th 2 3 4 5 6 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 7 that the Report and Recommendation did not even address. 8 at 2.) 9 extent Plaintiff continued to make allegations that the Court had (Opp'n In fact, the Report and Recommendation notes that to the 10 already dismissed without leave to amend, the Report would not 11 discuss them. 12 2011, specifically dismissed without leave to amend "the section 13 1985(2) and 1985(3) claims" and "the section 1986 claim" 14 at 33-34) on the ground that the underlying theories behind the 15 claims were fatally flawed (id. at 31-32). 16 he has not pleaded any new facts in the TAC, and his legal 17 theories have not changed either. 18 barred from raising any such claims in the TAC, no matter who the 19 defendant. 20 (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 21 reasons stated in the Report and Recommendation and this action 22 is dismissed with prejudice. 23 LET JUDGMENT BE ENTERED ACCORDINGLY. 24 25 DATED: March 19, 2012 26 JUDGE 27 28 3

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