Clifton Z Freeman Jr v. Cresie Lyons et al

Filing 100

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Dale S. Fischer for Report and Recommendation (Issued) 95 . IT IS ORDERED that: (1) Defendants' Motion to Dismiss (Motion) [Dkt. 85] is GRANTED in part and DENIED in part, pursuant to Fed. R . Civ. P. 12(b)(6), as follows: a) the Motion is GRANTED with respect to Plaintiff's claims against Defendants Toney, Lejeune, Tate, Webber, Brown, Mashimo, Patterson, and Milusnic, and these claims are dismissed without leave to amend and with prejudice. (See order for full details) (ec)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CLIFTON Z. FREEMAN, JR., 12 13 14 15 Case No. 5:14-cv-2350-DSF (GJS) Plaintiff v. CRESIE LYONS et al., Defendants. ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 18 Complaint and all pleadings, motions, and other documents filed in this action, the 19 Report and Recommendation of United States Magistrate Judge (“Report”), and the 20 parties’ respective Objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) 21 and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those 22 portions of the Report to which objections have been stated. 23 Plaintiff’s Objections―like his First Amended Complaint―do not articulate 24 a single viable theory of liability against Defendants Toney, Lejeune, Tate, Webber, 25 Brown, Mashimo, Patterson, or Milusnic, for whom the Magistrate Judge 26 recommends dismissal. Furthermore, Plaintiff’s Objections fail to explain how 27 discovery would be fruitful for purposes of alleging a viable claim against these 28 Defendants, particularly after the Court gave Plaintiff a generous chance to amend 1 the original Complaint under a new legal theory. In addition, Plaintiff’s baseless 2 belief that Defendant Santa waived service of process is not convincing. On March 3 31, 2016, the Court advised Plaintiff that he would have to pursue his available 4 discovery remedies, including under Fed.R. Civ. P. 45, to effect service of process 5 on Santa. Plaintiff did not contact the Court again regarding service of process on 6 Santa until eight months later, when these Objections were filed. Plaintiff has failed 7 to meet his burden of showing good cause for his failure to effect service of process 8 on Santa. 9 Defendants Lyons’ and Parker’s Objections are an attempt to salvage their 10 Motion to Dismiss by arguing an entirely new theory for qualified immunity that 11 was not presented in connection with that Motion. Defendants proffer no 12 explanation for their failure to raise this theory in their Motion to Dismiss. 13 “[A]llowing parties to litigate fully their case before the Magistrate and, if 14 unsuccessful, to change their strategy and present a different theory to the district 15 court would frustrate the purpose of the Magistrate Act.” See Greenhow v. 16 Secretary of Health & Human Services, 863 F.2d 633, 638-39 (9th Cir. 1988), 17 overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th 18 Cir. 1992) (en banc). The Court declines to consider this belatedly asserted theory. 19 20 21 22 23 Accordingly, the Court accepts the findings and recommendations set forth in the Report. IT IS ORDERED that: (1) Defendants’ Motion to Dismiss (“Motion”) [Dkt. 85] is GRANTED in part and DENIED in part, pursuant to Fed. R. Civ. P. 12(b)(6), as follows: a) the Motion is GRANTED with respect to Plaintiff’s claims against 24 Defendants Toney, Lejeune, Tate, Webber, Brown, Mashimo, 25 Patterson, and Milusnic, and these claims are dismissed without leave 26 to amend and with prejudice; 27 28 b) the Motion is DENIED with respect to Plaintiff’s First Amendment retaliation claim against Defendant Lyons; and 2 1 2 c) the Motion is DENIED with respect to Plaintiff’s First Amendment retaliation claims against Defendant Parker; 3 (2) Plaintiff’s claims against Defendant Santa are dismissed without prejudice 4 pursuant to Fed. R. Civ. P. 4(m); and 5 (3) Defendants Lyons and Parker are directed to file and serve an Answer to the 6 First Amended Complaint, as so amended, within 21 days of this Order. 7 8 9 10 11 IT IS SO ORDERED. 12/16/16 DATE: ____________________ __________________________________ DALE S. FISCHER UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?