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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

RAMON DEL RIO,

12

Plaintiff,

13
14

)
)
)
)
)
)
)
)
)
)
)

v.
GOVERNOR SCHWARZENEGGER,
et al,

15
Defendants.
16
17

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

18

Amended

Complaint,

19

Recommendation

20

plaintiff’s Objections to the Report.

21

novo review of those matters to which objections have been stated in

22

writing.

of

all

United

the

records

States

herein,

Magistrate

Judge

the

Report

(“Report”),

and
and

The Court has engaged in a de

23
24

Among

other

things,

the

Magistrate

Judge

concluded

that

25

plaintiff’s state law claims should be dismissed, because plaintiff

26

failed to allege timely compliance with the claims filing provisions of

27

the California Government Claims Act.

28

contends that he filed a timely claim with the Victims Compensation and

In his Objections, plaintiff

1

Government Claims Board (“VCGCB”).

Plaintiff has attached to his

2

Objections a copy of a letter from the VCGCB, dated March 20, 2009,

3

regarding his claim.

4

plaintiff’s claim on February 26, 2009, and accepted it to the extent

5

it asserted “allegations that arise from facts or events that occurred

6

during the six months prior to the date it was presented,” i.e., since

7

August 26, 2008.

According to this letter, the VCGCB received

8
9

A district court has discretion, but is not required, to consider

10

evidence or claims presented for the first time in objections to a

11

report and recommendation.

12

Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.

13

2000).

14

2009 VCGCB letter appended to plaintiff’s Objections.

15

the Court concludes that the letter does not affect the correctness of

16

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,

17
18

In his Second Amended Complaint, plaintiff asserts that his claims

19

arose during the period September 17, 2002, through October 28, 2008.

20

(Second Amended Complaint at 3.) The events giving rise to plaintiff’s

21

claims against the moving defendants, however, occurred during his

22

incarceration at Ironwood State Prison (“Ironwood”).

23

administrative appeals attached to plaintiff’s original complaint, on

24

May 15, 2008, plaintiff was no longer at Ironwood and was incarcerated

25

at Centinela State Prison.

26

necessarily accrued before May 15, 2008, which is more than six months

27

before

28

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

2

to

the

VCGCB.

Accordingly,

1

purposes

of

the

claims

raised

2

in

this

lawsuit.

See

California

Government Code § 911.2(a).

3
4

Having completed its review, the Court accepts the findings and

5

recommendations

set

forth

in

the

Magistrate

6

Judge’s

Report.

Accordingly, IT IS ORDERED as follows:

7
8

(1) Defendants’ motion to dismiss the Second Amended Complaint,

9

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, is

10

granted in part and denied in part as follows:

(a) defendants’ motion

11

to dismiss plaintiff’s retaliation and Eighth Amendment claims against

12

defendants Anti and Payton is denied; (b) all claims against defendants

13

Arneson, Sanford, and Arline are dismissed, without leave to amend; and

14

(c) all injunctive relief claims are dismissed, without leave to amend;

15
16
17

(2) All state law claims are dismissed, without leave to amend,
pursuant to 28 U.S.C. § 1915(e)(2)(B); and

18
19

(3) All claims against defendant Crawford are dismissed, without

20

prejudice,

21

pursuant

to

Rule

4(m)

of

the

Federal

Rules

of

Civil

Procedure.

22
23

Plaintiff is granted leave to file, within thirty (30) days, a

24

Third Amended Complaint consistent with this Order.

25

add new claims or defendants without prior leave of court.

26

Civ. P. 15(a).

27
28
3

Plaintiff may not
Fed. R.

1

Plaintiff is explicitly cautioned that failure to timely file a

2

Third Amended Complaint may result in dismissal of this action for

3

failure to prosecute and/or for failure to comply with this Court’s

4

orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

5
6

IT IS SO ORDERED.

7
8

DATED: July 27, 2011

9
10
TERRY J. HATTER, JR.
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4