Onofre Serrano v. City of Long Beach et al

Filing 55

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge Andre Birotte Jr. IT IS ORDERED:1. The Report and Recommendation is accepted; 2. Plaintiffs federal civil rights claims are dismissed without lea ve to amend; 3. Plaintiffs state law claims are dismissed without leave to amend, but without prejudice to plaintiff raising his claims in state court; 4. Judgment shall be entered dismissing this action with prejudice for failure to state a claim; and 5. The clerk shall serve this Order on all counsel or parties of record. 51 (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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ONOFRE SERRANO,

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Plaintiff,

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v.
CITY OF LONG BEACH, et al.,

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Defendants.

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No. CV 13-208-AB (PLA)
ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

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I.

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INTRODUCTION

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On January 5, 2016, the United States Magistrate Judge issued a Report and

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Recommendation (“R&R”), recommending that this action be dismissed with prejudice for failure

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to state a claim. On February 16, 2016, following an extension of time, plaintiff filed Objections

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to the R&R.

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II.

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DISCUSSION

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Plaintiff objects, in part, to the Court’s finding that the allegations are insufficient to state

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a claim against defendant Sergeant Herzog because “Herzog made racially tinged remarks,” and

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had “knowledge of the culpable actions of his subordinates.” (Objs. at 6). The only remarks that

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plaintiff alleges Herzog made are the comments that plaintiff had “no rights” and that the officers

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would “be around [plaintiff’s] neck like a rope” after plaintiff’s arrest. (Objs. at 5, 18). As stated

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in the R&R, these comments, which apparently were made during the course of an interrogation,

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do not raise a reasonable inference that Herzog acted with an intent or purpose to discriminate

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against plaintiff based on his race. Although plaintiff states that he erred in not alleging that

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Herzog “personally and/or acquiesce[d] in detaining” plaintiff as well as with the initial arrest,

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search of plaintiff’s motel room, and seizure of plaintiff’s vehicle (Objs. at 6, 17-18), such entirely

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conclusory allegations, unsupported by any facts, are not entitled to a presumption of truth.

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Further, plaintiff’s proposed additional allegation that Sergeant Herzog failed to train and or

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supervise the other defendants (Objs. at 7-8) remains insufficient because plaintiff’s claims arise

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from a single arrest and detention. Factual allegations arising from one isolated incident are

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insufficient to raise an inference either that inadequate training caused the alleged constitutional

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violation of which plaintiff complains, or that any supervisory defendant was deliberately indifferent

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to a lack of training. See Marsh v. County of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012)

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(allegations of an isolated instance of a constitutional violation are insufficient to support a “failure

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to train” theory).

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In addition, plaintiff’s proposed allegation that Sergeant Herzog was a “municipal policy

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maker” for the City of Long Beach (Objs. at 8, 10) remain insufficient for the reasons set forth in

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the R&R finding his allegations are insufficient to state a claim against the City. Plaintiff directs

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the Court to consider “historical background” and states that the City “had a practice of racially

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profiling people of color,” but plaintiff points to no facts supporting this conclusory allegation.

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(Objs. at 11-13). Plaintiff’s citation of a case concerning an incident in 1997 does not raise any

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reasonable inference concerning plaintiff’s arrest in 2012.

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III.

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CONCLUSION

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, the other records on

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file herein, the Magistrate Judge’s Report and Recommendation, and plaintiff’s objections to the

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report and recommendation. The Court has engaged in a de novo review of those portions of the

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report and recommendation to which objections have been made. The Court accepts the

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recommendations of the Magistrate Judge.

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ACCORDINGLY, IT IS ORDERED:

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1.

The Report and Recommendation is accepted;

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2.

Plaintiff’s federal civil rights claims are dismissed without leave to amend;

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3.

Plaintiff’s state law claims are dismissed without leave to amend, but without

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prejudice to plaintiff raising his claims in state court;
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Judgment shall be entered dismissing this action with prejudice for failure to state

a claim; and
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The clerk shall serve this Order on all counsel or parties of record.

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________________________________
HONORABLE ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE

DATED: May 3, 2016

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