Stephan Brooks v. Paco-Michelle Atwood et al

Filing 65

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge John F. Walter. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that: (1) the Moving Defendants&# 039; Motion to Dismiss is granted; (2) the Second Amended Complaint and the action as against the Moving Defendants is dismissed without leave to amend and with prejudice as to the federal claims against those Defendants; and (3) the Court declines to exercise supplemental jurisdiction over the state claims against the Moving Defendants and those state law claims against the Moving Defendants are dismissed without prejudice. (Attachments: # 1 Report and Recommendation) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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STEPHAN BROOKS, et al.,

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Plaintiffs,
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v.
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PACO-MICHELLE ATWOOD, et al., )
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Defendants.
)
______________________________)

NO. CV 15-7724-JFW(E)

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

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This Report and Recommendation is submitted to the Honorable

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John F. Walter, United States District Judge, pursuant to 28 U.S.C.

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section 636 and General Order 05-07 of the United States District

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Court for the Central District of California.

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BACKGROUND

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Plaintiff Stephan Brooks filed this action individually and as:

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(1) alleged successor trustee to the Sireaner Townsend Revocable

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Living Trust dated June 22, 2004 (“Trust”); (2) alleged sole

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beneficiary of the Trust; (3) alleged sole heir of the Sireaner

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Townsend Pour Over Will dated June 22, 2004; and (4) alleged heir to

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the estate of Sherrell Atwood.

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family dispute concerning residential real property which resulted in

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state court litigation, including a probate case concerning the

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Sherrell Atwood estate (“Estate Case”), a “Trust Case,” a “Will

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Contest Case” and a “Partition Case.”

Plaintiff’s claims arise out of a

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The original Complaint purported to state civil rights claims and

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state law claims against: (1) Plaintiff’s sister Paco-Michelle Atwood,

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individually and as alleged administrator of the estate of Sherrell

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Atwood; (2) Chrisangela Walston, allegedly an attorney for Atwood in

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the “Estate Case” and the “Partition Case”; (3) L’Tanya M. Butler,

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allegedly an attorney for Atwood in the state court cases; (4) Maurice

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Smith, Clifford Townsend, Jr. and Steven Townsend, the three

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petitioners in the “Trust Case” and “Will Contest” cases; (5) Guy

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Leemhuis, allegedly the attorney for Smith and the two Townsends;

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(6) Jonnie Johnson Parker, allegedly the attorney for Plaintiff

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individually and as alleged successor trustee in the “Trust Case”; and

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(7) ten fictitious “Doe” Defendants.

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Plaintiff alleged that the Defendants named in that pleading conspired

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with lawyers and judges to deprive Plaintiff of the right to the

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property, which allegedly previously was owned jointly by Plaintiff’s

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mother, Sherrell Atwood, and grandmother, Sireaner Townsend, both now

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deceased.

In the original Complaint,

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On December 8, 2015, Defendants Atwood, Butler and Walston filed

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a motion to dismiss the Complaint.

On January 8, 2016, Plaintiff

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filed an opposition to that motion.
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On January 19, 2016, the Court

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issued an “Order Dismissing Complaint With Leave to Amend,” dismissing

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the Complaint with leave to amend and permitting Plaintiff to file a

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First Amended Complaint.

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Plaintiff did not file a First Amended Complaint by the deadline

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set in the January 19, 2016 Order.

Accordingly, on March 3, 2016, the

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Magistrate Judge issued a Report and Recommendation recommending

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dismissal of the action without prejudice for failure to prosecute.

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On March 21, 2016, Plaintiff filed objections to the Report and

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Recommendation.

On March 22, 2016, the Magistrate Judge issued a

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Minute Order withdrawing the Report and Recommendation and extending

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the time within which Plaintiff could file a First Amended Complaint.

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Plaintiff filed a First Amended Complaint on April 5, 2016, naming the

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original Defendants and adding two new Defendants: (1) Los Angeles

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County Superior Court Executive Officer/Clerk Sherri Carter; and

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(2) Joseph A. Lane, Clerk of the California Court of Appeal, Second

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District.

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On April 7, 2016, Defendants Atwood, Butler and Walston filed a

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motion to dismiss the First Amended Complaint.

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Plaintiff filed an opposition to this motion.

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Magistrate Judge issued a Report and Recommendation recommending that

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the Court: (1) dismiss the First Amended Complaint and the action as

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against private party Defendants Atwood, Walston, Butler, Maurice

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Smith, Clifford Townsend, Jr., Steven Townsend, Guy A. Leemhuis, and

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On May 4, 2016,
On May 13, 2016, the

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Jonnie Johnson Parker,1 with prejudice with respect to the federal

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claims; and (2) decline to exercise supplemental jurisdiction over the

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state law claims against the private party Defendants and dismiss

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those state law claims against the private party Defendants without

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prejudice.

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On May 17, 2016, Defendants Carter and Lane filed a Motion to

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Dismiss the First Amended Complaint.

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On June 16, 2016, Plaintiff

filed an Opposition.

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On June 20, 2016, the District Judge issued an “Order Accepting

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Findings, Conclusions and Recommendations of United States Magistrate

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Judge.”

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and Recommendation, dismissing from the action all Defendants other

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than Defendants Carter and Lane.

This Order adopted the Magistrate Judge’s May 13, 2016 Report

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On June 28, 2016, the Magistrate Judge issued a Report and

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Recommendation addressing the Motion to Dismiss filed by Defendants

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Carter and Lane and inter alia recommending dismissal of the First

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Amended Complaint as against the Defendants with leave to amend.

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Among other things, the Report and Recommendation advised Plaintiff

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that the doctrine of quasi-judicial immunity shielded Defendants

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Carter and Lane from liability for actions taken in their capacities

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Although Defendants Maurice Smith, Clifford Townsend,
Jr., Steven Townsend, Guy A. Leemhuis and Jonnie Johnson Parker
had not appeared in the action, the same reasons supporting
dismissal of the First Amended Complaint as against the appearing
private party Defendants supported dismissal of the First Amended
Complaint and the action as against Defendants Smith, Clifford
Townsend, Jr., Steven Townsend, Leemhuis and Parker.
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as court clerks when they perform tasks that are an integral part of

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the judicial process.

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“Order Accepting Findings, Conclusions and Recommendations of United

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State Magistrate Judge,” dismissing the First Amended Complaint as

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against Defendants Carter and Lane with leave to amend.

On August 5, 2016, the District Judge issued an

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On September 6, 2016, Plaintiff filed a Second Amended Complaint

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against Defendants Carter and Lane, and adding as Defendants: (1) Los

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Angeles County Superior Court Judges Beckloff, Cowan, Levanas and

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Stratton; (2) California Court of Appeal Justices Epstein, Willhite

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and Collins; and (3) the County of Los Angeles (“County”).

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On September 21, 2016, Defendants Carter and Lane filed a Motion

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to Dismiss the Second Amended Complaint.

On October 21, 2016,

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Plaintiff filed an Opposition to the Motion to Dismiss.

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SUMMARY OF PLAINTIFF’S ALLEGATIONS

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I.

Original Complaint

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In the original Complaint, Plaintiff alleged that various private

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party Defendants, supposedly in conspiracy with “Co-Conspirator”

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judicial officers not then named as Defendants, filed and pursued sham

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litigation by allegedly, among other things:

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filing the “Estate Case” assertedly with knowledge that

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Sherrell Atwood purportedly had no interest in the property and that

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Plaintiff allegedly was “the 2/3 heir of Sherrell Atwood”;
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doing nothing to advance the Estate Case;

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perpetrating a fraud upon the court and obtaining a

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settlement by threat and coercion;

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causing the property taxes to become delinquent;

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filing the allegedly sham “Partition” case over a year after

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the “Estate Case” should have been dismissed, assertedly knowing that

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Maurice Smith allegedly was not an heir of Sireaner Townsend and that

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the court allegedly lacked jurisdiction;

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seeking and obtaining eighty continuances over four years in

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the four cases and refusing to dismiss three of the cases after five

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years;

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threatening Plaintiff in order to settle one or more of the

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state cases;

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executing an incorrect and invalid settlement agreement; and

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filing the “still open” “Will Contest Case” allegedly knowing

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the case purportedly was baseless and “would fail from the outset,”

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and without intent to pursue the case

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(see Complaint, pp. 22-31).

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The original Complaint identified various state court judges not

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named as Defendants as purported “co-conspirators”: (1) Los Angeles

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Superior Court Judges Mitchell L. Beckloff, David J. Cowan, Michael I.

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Levanas and Maria E. Stratton; and (2) California Court of Appeal

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Justices Norman L. Epstein, Audrey B. Collins and Thomas L. Willhite,

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Jr.

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wrongfully granted continuances in the four cases over a four-year

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period “at the behest of Defendants,” refused to decide jurisdictional

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motions to dismiss, refused to dismiss cases “when mandatorily bound

According to Plaintiff’s allegations, the Superior Court judges

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by five year statutes,” and refused to close and distribute the estate

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of Sherrell Atwood “when bound to do so by statute” (id., p. 21).

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Plaintiff also alleged the Superior Court judges: (1) received

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“retroactive immunity pursuant to SBX 2 11 from California criminal

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prosecution, civil liability and disciplinary action for taking

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payments from LA County while sitting as [judges] prior to July 1,

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2008”; (2) received allegedly illegal payments which they assertedly

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failed to disclose; and (3) were biased because Los Angeles County

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assertedly would benefit from increased tax revenue purportedly to be

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gained from a court-ordered sale of the property (see Complaint, pp.

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10-14).

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In the original Complaint, Plaintiff alleged that Justices

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Epstein and Willhite: (1) received “retroactive immunity pursuant to

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SBX 2 11 from California criminal prosecution, civil liability and

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disciplinary action for taking payments from LA County while sitting

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as [Superior Court judges] prior to July 1, 2008”; (2) received

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allegedly illegal payments which they assertedly failed to disclose;

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and (3) failed to disclose that Superior Court judges had engaged in
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fraud by taking payments from Los Angeles County during the “Partition

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Case” (id., pp. 15-17).

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appellate opinions assertedly knowing that Paco-Michelle Atwood

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supposedly did not contest that the Superior Court judges allegedly

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had engaged in fraud by taking purportedly illegal payments from the

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County; and (2) failed to address Plaintiff’s challenges to the

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Superior Court’s jurisdiction (id., pp. 14-17).

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allegedly violated the Code of Judicial Ethics by failing to disclose

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that she had been a Los Angeles County district attorney and that

The appellate justices allegedly: (1) signed

Justice Collins

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during her tenure as Presiding Judge of this Court she allowed United

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States District Judges who were former Superior Court Judges to

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receive the aforesaid “retroactive immunity” (id., pp. 15-16).

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The original Complaint alleged five claims for relief, styled

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“causes of action.”

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deprivation of due process pursuant to 42 U.S.C. section 1983.

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Defendants allegedly perverted and obstructed justice through delays,

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fraud on the court and bias, took the property without due process and

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denied Plaintiff equal protection “by threats and intimidation” (id.,

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p. 32).

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Plaintiff of equal protection in violation of 42 U.S.C. section

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1985(2).

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declaratory and injunctive relief.

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Action asserted supplemental claims for intentional and negligent

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infliction of emotional distress, respectively.

The First Cause of Action asserted a claim for

The Second Cause of Action alleged a conspiracy to deprive

The Third Cause of Action purportedly asserted a claim for
The Fourth and Fifth Causes of

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Plaintiff attached to the original Complaint, among other things:
(1) a partial copy of an order of the Los Angeles County Superior
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Court, dated September 16, 2014, granting summary adjudication for

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Paco-Michelle Atwood as administrator of the Estate of Sherrell

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Atwood, finding that Plaintiff owned a one-sixth interest in the real

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property and ruling that the Estate was entitled to a partition by

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sale; and (2) a copy of the decision of the California Court of Appeal

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affirming the Superior Court’s order2 (Complaint, Ex. 3).

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In the original Complaint, Plaintiff sought damages, an order

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setting aside the state court’s order which determined ownership of

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and ordered the sale of the property, and an injunction restraining

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Defendants from engaging in any action to sell the property or to

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acquire or share any proceeds from the sale of the property.

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II.

The First Amended Complaint

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The First Amended Complaint was very similar to its predecessor.

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Most of the substantive allegations were identical or virtually

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identical to those in the original Complaint.

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add allegations supposedly showing that Defendants engaged in “Joint

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Action, Common Scheme, Concert of Action, Conspiracy and Fraud Upon

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the Court” (First Amended Complaint, pp. 3-5).

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allegations that newly named Defendant Carter purportedly destroyed

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and/or omitted documents from the “Case Summaries” of some of the

Plaintiff purported to

Plaintiff also added

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See Atwood v. Brooks, 2015 WL 5029639 (No. B258407)
(Cal. App. Aug. 25, 2015). Among other things, the Court of
Appeal rejected Plaintiff’s argument that Atwood delayed
unreasonably in filing a probate action and Plaintiff’s argument
that the Superior Court judges should have been disqualified
because they purportedly received unauthorized employment
benefits.
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state court cases and allegedly listed documents in the Partition case

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which assertedly did not exist (id., p. 27).

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allegedly refused to provide Plaintiff with a “timely date for a

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motion to stop April 13, 2015 trial even though motion was timely

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filed. . . .” (id.).

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Atwood’s motion to dismiss the appeal in case number B267893 [sic]

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before the record was filed, assertedly in violation of a court rule

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(id., p. 28).

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of continuances in the state court cases, a purported May 9, 2016

Defendant Carter also

Newly named Defendant Lane allegedly filed

Plaintiff also added allegations concerning the number

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trial date in the Estate Case, and the California Court of Appeal’s

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dismissal of Plaintiff’s appeal in Atwood v. Brooks, Court of Appeal

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case number B267393 (see, e.g., id., pp. 7, 14-16, 18, 20-21).

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The First Amended Complaint contained five “causes of action.”

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The First Cause of Action alleged: (1) violations of due process “by

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perverting and obstructing justice through destruction of documents,

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refusal to file documents, delays, fraud upon the court and bias” and

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by taking property without due process; and (2) violations of equal

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protection by allegedly subjecting Plaintiff to “threats and

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intimidation” (id., p. 39).

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conspiracy in asserted violation of 42 U.S.C. section 1985(2).

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Third Cause of Action sought declaratory relief in the Partition Case,

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an order setting aside all orders in the Partition Case and temporary

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and permanent injunctive relief preventing Defendants from “engaging

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in any action in the Partition Case based upon any order obtained

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through fraud upon the court” (id., p. 44).

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Causes of Action alleged claims of intentional and negligent

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infliction of emotional distress.

The Second Cause of Action alleged
The

The Fourth and Fifth

Plaintiff sought damages and the
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previously mentioned declaratory and injunctive relief.

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III.

The Second Amended Complaint

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The Second Amended Complaint closely resembles its predecessors.

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Plaintiff again alleges that Judges Beckloff, Cowan, Levanas and

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Stratton received illegal payments from the County, improperly granted

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continuances in the four cases, improperly assumed jurisdiction in

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three of the cases, exhibited bias, and refused to dismiss three cases

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as allegedly untimely (Second Amended Complaint, pp. 4-12, 26-27).

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Defendants Epstein, Willhite and Collins allegedly received illegal

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payments from the County and made incorrect and unlawful rulings (id.,

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pp. 4, 13-18, 27-28).

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failed to place documents assertedly filed by Plaintiff in the court

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file, destroyed documents, listed allegedly non-existent documents in

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a “case summary,” refused to provide Plaintiff with a hearing date for

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a motion Plaintiff filed and refused to show Plaintiff’s motion to

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stay the Partition Case in the “case summary” (id., pp. 4-5, 18-19,

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28-29).

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appeal” and obstructed justice by filing Atwood’s motion to dismiss an

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appeal before the record was filed (id., pp. 5, 19-20, 29).

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County allegedly made illegal payments to the judicial Defendants

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(id., pp. 5, 20-21).

Defendant Carter allegedly destroyed and/or

Defendant Lane allegedly “made an illegal filing in the

The

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Like the First Amended Complaint, the Second Amended Complaint

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contains purported claims for: (1) deprivation of due process and

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equal protection pursuant to 42 U.S.C. section 1983; (2) conspiracy to

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deprive Plaintiff of equal protection in violation of 42 U.S.C.
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section 1985(2); (3) declaratory and injunctive relief; (4)

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intentional infliction of emotional distress; and (5) negligent

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infliction of emotional distress.

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Plaintiff seeks damages and declaratory and injunctive relief

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restraining the Defendants from “engaging in any action in the

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Partition Case” (id., pp. 38, 40).3

As in the First Amended Complaint,

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STANDARDS GOVERNING MOTION TO DISMISS

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To survive a motion to dismiss under Rule 12(b)(6), “a complaint

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must contain sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.”

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556 U.S. 662, 678 (2009) (citation and internal quotations omitted).

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“A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal,

Id.

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The Court must accept as true all non-conclusory factual

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allegations in the complaint and must construe the complaint in the

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light most favorable to the plaintiff.

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Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009).

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court may not consider material beyond the complaint in ruling on a

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Fed. R. Civ. P. 12(b)(6) motion.”

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Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and

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footnote omitted).

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Zucco Partners, LLC v.
“Generally, a

Intri-Plex Technologies, Inc. v.

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The Third Cause of Action does not contain any charging
allegations against the Moving Defendants.
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The Court may not dismiss a pro se complaint without leave to

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amend unless “it is absolutely clear that the deficiencies of the

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complaint could not be cured by amendment.”

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (citations and

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quotations omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th

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Cir. 2000) (en banc) (district court should grant leave to amend

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“unless it determines that the pleading could not possibly be cured by

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the allegation of other facts”) (citation and internal quotations

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omitted).

Karim-Panahi v. Los

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DISCUSSION

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The Moving Defendants contend, inter alia, that the Eleventh

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Amendment bars Plaintiff’s claims and that the doctrine of quasi-

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judicial immunity shields the Moving Defendants from suit.

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following reasons, the Court agrees that quasi-judicial immunity

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shields the Moving Defendants from suit.4

For the

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Like the First Amended Complaint, the Second Amended Complaint

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does not clearly allege the capacities in which Plaintiff purports to

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sue the Moving Defendants.

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that, to the extent Plaintiff sues either Moving Defendant in his or

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her official capacity, the Eleventh Amendment bars suits in federal

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court for monetary damages against state officials sued in their

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official capacities.

The Court previously advised Plaintiff

See Will v. Michigan Department of State Police,

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Hence, the Court need not and does not reach the
remaining issues raised by Defendants.
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491 U.S. 58, 71 (1989); Krainski v. Nevada ex rel. Bd. of Regents of

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Nevada System of Higher Educ., 616 F.3d 963, 968 (9th Cir. 2010),

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cert. denied, 562 U.S. 1286 (2011).

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Plaintiff states that he intends to sue the Moving Defendants for

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damages in their individual capacities (see Opposition, pp. 4-5).

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Eleventh Amendment does not bar such claims.

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U.S. 21, 30-31 (1991); Suever v. Connell, 579 F.3d 1047, 1060-61 (9th

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Cir. 2009).

In his Opposition, however,

The

See Hafer v. Melo, 502

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However, assuming arguendo that the Second Amended Complaint

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pleads claims against the Moving Defendants in their individual

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capacities only, the doctrine of quasi-judicial immunity shields those

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Defendants from suit in this case.

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As the Court previously advised Plaintiff, the doctrine of

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judicial immunity bars state and federal claims for damages against a

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judicial officer for actions taken in his or her judicial capacity.

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See Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam); Moore v.

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Brewster, 96 F.3d 1240, 1243-44 (9th Cir. 1996), cert. denied, 519

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U.S. 1118 (1997).

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of bad faith or malice.”

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doctrine “applies however erroneous the act may have been, and however

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injurious in its consequences it may have proved to the plaintiff.”

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Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985) (citations and

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quotations omitted).

“[J]udicial immunity is not overcome by allegations
Mireles v. Waco, 502 U.S. at 11.

The

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Absolute immunity “is not reserved solely for judges, but extends
to nonjudicial officers for all claims relating to the exercise of
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judicial functions.”

Burton v. Infinity Capital Management, 753 F.3d

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954, 959 (9th Cir. 2014) (citations and internal quotations omitted).

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“[C]ourt clerks are entitled to absolute immunity even in the absence

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of a judicial directive so long as the acts were not done ‘in the

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clear absence of all jurisdiction.’”

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United States Bankruptcy Court for Dist. of Nev., 828 F.2d 1385, 1390

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(9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988)).

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have absolute quasi-judicial immunity from damages for civil rights

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violations when they perform tasks that are an integral part of the

Id. at 961 (quoting Mullis v.

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judicial process.”

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“Court clerks

of Nev., 828 F.2d at 1390 (citations omitted).

Mullis v. United States Bankruptcy Court for Dist.

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Here, Plaintiff’s federal claims against the Moving Defendants

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arise out of alleged actions taken in Moving Defendants’ capacities as

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court clerks, involving tasks which were an “integral part of the

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judicial process.”

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Moving Defendants are entitled to quasi-judicial immunity.

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Coulter v. Roddy, 463 Fed. App’x 610, 611 (9th Cir. 2011), cert.

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denied, 132 S. Ct. 2752 (2012) (court clerk immune for allegedly

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directing deputy clerks to refuse to file forms presented by a pro se

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litigant seeking dismissal of a civil action); Essell v. Carter, 450

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Fed. App’x 691 (9th Cir. 2011) (court clerks immune for failing to

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respond to pro se plaintiff’s letters and failing to file various

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motions and appeals); Sedgwick v. United States, 265 Fed. App’x 567,

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568 (9th Cir. 2008) (United States Supreme Court clerk immune for

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refusing to file plaintiff’s petition for writ of certiorari); In re

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Castillo, 297 F.3d 940, 951-52 (9th Cir. 2002) (bankruptcy trustee

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absolutely immune for failing to give notice of hearing and improperly

On the face of the Second Amended Complaint, the

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See

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scheduling hearing); Moore v. Brewster, 96 F.3d at 1244 (court clerk

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immune for allegedly deceiving plaintiff regarding status of

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supersedeas bond and improperly conducting hearings to assess costs);

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Mullis v. United States Bankruptcy Court for Dist. of Nev., 828 F.2d

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at 1390 (bankruptcy court clerks immune for failing to provide

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requested information and refusing to accept and file an amended

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bankruptcy petition); Morrison v. Jones, 607 F.2d 1269, 1273 (9th Cir.

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1979), cert. denied, 445 U.S. 962 (1980) (court clerk immune for

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allegedly failing to give notice of a dependency court order);

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Marchetti v. Superior Court, 2016 WL 4658959, at *8 (N.D. Cal.

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Sept. 7, 2016) (court clerks immune for denying plaintiff’s request

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for a hearing); Shatford v. Los Angeles County Sheriff’s Dep’t, 2016

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WL 1579379, at *10 (C.D. Cal. Mar. 29, 2016), adopted, 2016 WL 1573422

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(Apr. 19, 2016) (“Procedures for calendaring appearances before a

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judicial officer and deciding whether or not to file documents on the

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court's docket are an integral part of the judicial process, even if

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those tasks are considered administrative or ministerial.”); Maldonado

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v. Superior Court, 2013 WL 635951, at *3 (E.D. Cal. Feb. 20, 2013)

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(clerk immune for failing to take action on plaintiff’s complaints and

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habeas corpus petition); Armstrong v. Scribner, 2008 WL 268974, at *19

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(S.D. Cal. Jan. 30, 2008) (clerk immune for failing to file documents

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plaintiff submitted to the court).

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CONCLUSION

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As previously indicated, the Court may dismiss a complaint

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without leave to amend if “it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.”
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1

Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d at 623; see also

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Lopez v. Smith, 203 F.3d at 1130.

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afforded the opportunity to amend his pleading to attempt to state

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cognizable federal claims against the Moving Defendants, he has proven

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unable to state such claims.

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amendment would be futile.

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F.3d 777, 785 (9th Cir. 1997), overruled on other grounds, Green v.

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City of Tucson, 255 F.3d 1086 (9th Cir. 2001) (amendment futile

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because defendant was entitled to judicial immunity); see also Simon

Although Plaintiff previously was

In these circumstances, further
See Martinez v. Newport Beach City, 125

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v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.),

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amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104

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(2001), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d

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541 (9th Cir.), cert. denied, 552 U.S. 985 (2007) (affirming dismissal

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without leave to amend where plaintiff failed to correct deficiencies

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in complaint, where court had afforded plaintiff opportunities to do

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so, and where court had given plaintiff notice of the substantive

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problems with his claims); Plumeau v. School District #40, County of

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Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend

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appropriate where further amendment would be futile).

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RECOMMENDATION

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For all of the foregoing reasons, IT IS RECOMMENDED that the

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Court issue an Order:

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Recommendation; (2) granting the Moving Defendants’ Motion to Dismiss;

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(3) dismissing the Second Amended Complaint and the action as against

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the Moving Defendants without leave to amend and with prejudice as to

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the federal claims against those Defendants; and (4) declining to

(1) accepting and adopting this Report and

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exercise supplemental jurisdiction over the state law claims against

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the Moving Defendants (see 28 U.S.C. § 1367(c)(3)) and dismissing

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those state law claims against the Moving Defendants without

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prejudice.

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Dated: November 29, 2016.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

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No notice of appeal pursuant to the