Ramon Del Rio v. Crawford et al
Filing
89
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Terry J. Hatter, Jr for Report and Recommendation (Issued), 81 . Plaintiff is granted leave to file, within thirty (30) days, a Third Amended Complaint consistent with this Order. IT IS SO ORDERED. (mz)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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RAMON DEL RIO,
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Plaintiff,
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v.
GOVERNOR SCHWARZENEGGER,
et al,
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Defendants.
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NO. EDCV 09-214-TJH (MAN)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second
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Amended
Complaint,
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Recommendation
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plaintiff’s Objections to the Report.
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novo review of those matters to which objections have been stated in
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writing.
of
all
United
the
records
States
herein,
Magistrate
Judge
the
Report
(“Report”),
and
and
The Court has engaged in a de
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Among
other
things,
the
Magistrate
Judge
concluded
that
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plaintiff’s state law claims should be dismissed, because plaintiff
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failed to allege timely compliance with the claims filing provisions of
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the California Government Claims Act.
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contends that he filed a timely claim with the Victims Compensation and
In his Objections, plaintiff
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Government Claims Board (“VCGCB”).
Plaintiff has attached to his
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Objections a copy of a letter from the VCGCB, dated March 20, 2009,
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regarding his claim.
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plaintiff’s claim on February 26, 2009, and accepted it to the extent
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it asserted “allegations that arise from facts or events that occurred
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during the six months prior to the date it was presented,” i.e., since
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August 26, 2008.
According to this letter, the VCGCB received
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A district court has discretion, but is not required, to consider
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evidence or claims presented for the first time in objections to a
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report and recommendation.
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Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.
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2000).
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2009 VCGCB letter appended to plaintiff’s Objections.
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the Court concludes that the letter does not affect the correctness of
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the Report’s conclusion regarding plaintiff’s state law claims.
See Brown v. Roe, 279 F.3d 742, 744-45 (9th
The Court exercises its discretion to consider the March 20,
Having done so,
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In his Second Amended Complaint, plaintiff asserts that his claims
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arose during the period September 17, 2002, through October 28, 2008.
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(Second Amended Complaint at 3.) The events giving rise to plaintiff’s
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claims against the moving defendants, however, occurred during his
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incarceration at Ironwood State Prison (“Ironwood”).
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administrative appeals attached to plaintiff’s original complaint, on
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May 15, 2008, plaintiff was no longer at Ironwood and was incarcerated
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at Centinela State Prison.
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necessarily accrued before May 15, 2008, which is more than six months
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before
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plaintiff’s presentation of his claim to the VCGCB was not timely for
plaintiff
presented
According to the
Thus, plaintiff’s state law tort claims
a
claim
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to
the
VCGCB.
Accordingly,
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purposes
of
the
claims
raised
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in
this
lawsuit.
See
California
Government Code § 911.2(a).
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Having completed its review, the Court accepts the findings and
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recommendations
set
forth
in
the
Magistrate
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Judge’s
Report.
Accordingly, IT IS ORDERED as follows:
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(1) Defendants’ motion to dismiss the Second Amended Complaint,
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pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, is
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granted in part and denied in part as follows:
(a) defendants’ motion
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to dismiss plaintiff’s retaliation and Eighth Amendment claims against
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defendants Anti and Payton is denied; (b) all claims against defendants
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Arneson, Sanford, and Arline are dismissed, without leave to amend; and
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(c) all injunctive relief claims are dismissed, without leave to amend;
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(2) All state law claims are dismissed, without leave to amend,
pursuant to 28 U.S.C. § 1915(e)(2)(B); and
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(3) All claims against defendant Crawford are dismissed, without
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prejudice,
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pursuant
to
Rule
4(m)
of
the
Federal
Rules
of
Civil
Procedure.
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Plaintiff is granted leave to file, within thirty (30) days, a
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Third Amended Complaint consistent with this Order.
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add new claims or defendants without prior leave of court.
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Civ. P. 15(a).
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Plaintiff may not
Fed. R.
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Plaintiff is explicitly cautioned that failure to timely file a
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Third Amended Complaint may result in dismissal of this action for
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failure to prosecute and/or for failure to comply with this Court’s
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orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
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IT IS SO ORDERED.
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DATED: July 27, 2011
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TERRY J. HATTER, JR.
UNITED STATES DISTRICT JUDGE
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