Larry Charles Cleveland v. Los Angeles County Sheriffs Department et al

Filing 92

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Dale S. Fischer for Report and Recommendation (Issued) 85 . Plaintiff is granted leave to file a Third Amended Complaint consistent with the Report and Recommendation and this Order within 30 days of this Order. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LARRY CHARLES CLEVELAND,

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Case No. 2:15-cv-01399-DSF (GJS)

Plaintiff
v.
LOS ANGELES COUNTY
SHERIFF’S DEPARTMENT, et al.,

ORDER ACCEPTING FINDINGS
AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

Defendants.

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended

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Complaint and all relevant pleadings, motions, and other documents filed in this

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action, the Report and Recommendation of United States Magistrate Judge (Report),

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and Plaintiff’s Objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) and

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Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those portions of

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the Report to which objections have been stated.

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Plaintiff’s Objections―like his Second Amended Complaint―do not

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articulate a single viable theory of liability against Defendant Bleau, for whom the

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Magistrate Judge recommends dismissal without leave to amend and with prejudice.

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Furthermore, Plaintiff’s Objections sets forth a variety of facts he did not plead in

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his Second Amend Complaint and which he now contends satisfy Monell v. Dep’t of

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Social Services of City of New York, 436 U.S. 658 (1978), for purposes of alleging a

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viable claim against the Los Angeles Sheriff’s Department. The Court may not

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consider any material beyond the pleadings for purposes of the pending Motion to

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Dismiss. If Plaintiff chooses to replead his claim against the Los Angeles Sheriff’s

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Department or Frechette (in his official capacity), his amended complaint should

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include these additional facts proffered in his Objections.

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In addition, Plaintiff’s statement that he did not have sufficient time to

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complete service of process on the five unserved Defendants (Scott, Ornelas,

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Enriquez, Mogo, and Saddlers) is not convincing. On May 5, 2016, the Court sua

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sponte extended the Rule 4(m) deadline to July 29, 2016, and directed Plaintiff to

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send revised USM-285 forms to the U.S. Marshal for the unserved Defendants.

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Plaintiff did not contact the Court regarding service of these five Defendants or to

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request an extension until more than ten months later, when these Objections were

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filed. Plaintiff has failed to meet his burden of showing good cause for his failure to

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effect service of process on Scott, Ornelas, Enriquez, Mogo, and Saddlers.

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Accordingly, the Court accepts the findings and recommendations set forth in

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the Report. Based on Plaintiff’s status as a pretrial detainee, all of Plaintiff’s claims,

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although captioned as arising under the Eighth and/or Fourteenth Amendments, are

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in fact Fourteenth Amendment claims. With respect to these claims, IT IS

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ORDERED that:

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(1) Defendants’ Motion to Dismiss (Motion) [Dkt. 46] is GRANTED in part and
DENIED in part, pursuant to Fed. R. Civ. P. 12(b)(6), as follows:

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a) the Motion is GRANTED with respect to Plaintiff’s claim against

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Defendant Bleau (in his individual capacity), and this claim is

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dismissed without leave to amend and with prejudice;

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b) the Motion is GRANTED with respect to Plaintiff’s claim against

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Defendant Frechette (in his official capacity), and this claim is

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dismissed without prejudice;
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c) the Motion is GRANTED with respect to Plaintiff’s claim against the

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Los Angeles Sheriff’s Department, and this claim is dismissed with

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leave to amend;
d) the Motion is DENIED with respect to Plaintiff’s Fourteenth

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Amendment improper medical care claims against Defendants Zasortin

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and Felahy; and
e) the Motion is DENIED with respect to Plaintiff’s Fourteenth

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Amendment excessive force claim against Defendant Cooley;

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(2) Plaintiff’s claims against the Unserved Defendants (Scott, Ornelas, Enriquez,

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Mogo, and Saddlers) are dismissed without prejudice pursuant to Fed. R. Civ. P.

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4(m);

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(3) Plaintiff’s claims against the Doe defendants are dismissed without

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prejudice; and

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(4) Plaintiff is granted leave to file a Third Amended Complaint consistent with

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the Report and Recommendation and this Order within 30 days of this Order.

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IT IS SO ORDERED.

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4/11/17

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DATE: ____________________

__________________________________
DALE S. FISCHER
UNITED STATES DISTRICT JUDGE

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