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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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

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