Joseph McDaniels v. United States of America et al

Filing 85

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Valerie Baker Fairbank for Report and Recommendation (Issued) 75 , NOTICE OF MOTION AND MOTION to Dismiss Case 54 . Defendants shall answer the SAC within 21 days from the date of this Order. (see document for details) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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Plaintiff,
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v.
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UNITED STATES OF AMERICA, et )
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al.,
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Defendants.
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JOSEPH McDANIELS,

Case No. 5:14-cv-02594-VBF (JDE)
ORDER ACCEPTING FINDINGS
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the records on file,

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including the operative Second Amend Complaint (Dkt. 19, “SAC”) filed by

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Plaintiff Joseph McDaniels (“Plaintiff”), the Motion to Dismiss the SAC (Dkt.

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54, “Motion”) filed by defendants the United States of America (“United

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States”) and Pablo Prieto (“Prieto”) (collectively, “Defendants”), Plaintiff’s

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Opposition to the Motion (Dkt. 58), Defendants’ Reply (Dkt. 62), and the

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Report and Recommendation of the assigned United States Magistrate Judge

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(Dkt. 75). No party filed any objections to the Report and Recommendation.

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Therefore, IT IS HEREBY ORDERED that:

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1.

The Report and Recommendation is approved and accepted;

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2.

The Motion is GRANTED as to Plaintiff’s Federal Tort Claims

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Act (“FTCA”) claim against the United States based upon the

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alleged conduct of non-defendant Officer McCormick and as to

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the alleged lack of staffing and those claims are dismissed without

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leave to amend;

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3.

The Motion is GRANTED as to the United States’ request to

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strike the SAC’s punitive damage request against it and that

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request is stricken as to the United States;

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4.

the FTCA claim against the United States based upon the alleged

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conduct of non-defendants Agular and Patterson.

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The Motion is DENIED as to the Bivens claim against Prieto and

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Subject to the foregoing, Defendants shall answer the SAC within
21 days from the date of this Order.

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Dated: March 5, 2019
______________________________
VALERIE BAKER FAIRBANK
United States District Judge

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