Demetrius T. Freeman v. J. Zilliox et al

Filing 76

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Dale S. Fischer for EX PARTE APPLICATION for Judicial Notice 72 , MOTION to Dismiss 51 , Report and Recommendation 71 . Defendants' Motion to Dismiss Plaintiff's claims (Dkt. 51 ) is GRANTED IN PART. Plaintiff may file a Fourth Amended Complaint that cures the pleading defects set forth in the Report no later than thirty (30) days from the date of this Order. The Request for Judicial Notice (Dkt. 72) is DENIED without prejudice. (see document for further details) (hr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

DEMETRIUS T. FREEMAN,
Plaintiff,
v.
J. ZILLIOX, et al.,
Defendants.

EDCV 22-0097 DSF (AS)
ORDER ACCEPTING REPORT
AND RECOMMENDATION OF
UNITED STATES
MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Third
Amended Complaint, Defendants’ Motion to Dismiss, records on file,
Report and Recommendation of United States Magistrate Judge
(“Report”), Plaintiff’s Request for Judicial Notice, Plaintiff’s Objections
to the Report, Defendant’s Response to Plaintiff’s Objections, and
Plaintiff’s Declaration in Support of his Objections. The Court has
conducted a de novo review of the portions of the Report to which
Objections were directed. Although not required, in an abundance of
caution the Court briefly discusses the following points. See United
States v. Ramos, 65 F.4th 427, 434 (9th Cir. 2023) (“the district court
ha[s] no obligation to provide individualized analysis of each
objection”); Wang v. Masaitis, 416 F.3d 992, 1000 (9th Cir. 2005)
(affirming a cursory district court order summarily adopting, without
addressing any objections, a magistrate judge’s report and
recommendation).

First 1, Plaintiff claims that his excessive force claims should survive
the Motion to Dismiss because they do not present a new Bivens
context under Farmer v. Brennan, 511 U.S. 825 (1994). (Dkt. 73 at 1).
But, as Defendants point out, but the Ninth Circuit has rejected that
argument in Marquez v. Rodriguez, 81 F.4th 1027, 1030-31 (9th Cir.
2023). (Dkt. 74 at 2-3).
Second, Plaintiff contends that the existence of an alternative
remedial process does not foreclose a Bivens action, and the prison
administrative remedy process should not “give[] reason to ‘hesitate’”
extending a Bivens remedy. (Dkt. 73 at 4). That argument, however,
was foreclosed by Egbert v. Boule, 596 U.S. 482 (2022) and Ziglar v.
Abbasi, 582 U.S. 120 (2017). See Marquez, 81 F.4th at 1033.
Third, Plaintiff appears to seek piecemeal amendment through his
Objections (Dkt. 73 at 1) and his Declaration (Dkt. 75 at 1-2) 2 to add a
new claim for assault and battery, or to have such a claim construed
into an existing claim, alleging—now two years into this litigation—
that he mistakenly omitted it (id. at 1). Relatedly, Plaintiff’s fourth
objection appears to request amendment of his fifth claim to include the
additional non-medical defendants. (Dkt. 73 at 2-3). Plaintiff’s request
to add new claims or to apply existing claims to additional defendants
may be brought by a properly noticed motion to amend, should Plaintiff
seek to pursue such amendment at this late juncture, not via his
Objections and Declaration. See Hamilton v. Chendehen, 2016 WL
1394340, at *1 (E.D. Cal. Apr. 8, 2016) (plaintiff may not seek
piecemeal amendment of complaint by way of objections); see also
Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.
1990) (affirming the denial of leave to amend where the plaintiffs
moved to amend two years after the initial filing and the new claims
would have altered the nature of the litigation and would have required
The Court adopts the renumbering of Plaintiff’s Objections as set forth in
the Defendants’ Response. (See Dkt. 74 at 2 n.2).
1

Plaintiff’s Declaration was filed after Defendants had responded to the
Objections.

2

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defendants to have “undertaken, at a late hour, an entirely new course
of defense”); Redon v. Ruiz, 2016 WL 3406126, at *4 (S.D. Cal. June 21,
2016) (leave to amend denied plaintiff sought to amend the complaint
for a fourth time to add new claims and two new defendants).
Finally, Plaintiff’s request for judicial notice of pages from an
unspecified case (Dkt. 72 (Plaintiff states the “case citation has been
omitted, but it is a 9th Circuit case”)), fails to properly identify a legal
authority, and in any event, is not a proper matter for judicial notice.
See Garcia v. RPC Old Town Ave. Owner, LLC, 2021 WL 1733388, at
*3 (S.D. Cal. May 3, 2021) (“it is unnecessary to judicially notice case
law”); see also Burrus v. Elevance Health, Inc., 2023 WL 8896902, at *3
(C.D. Cal. Oct. 24, 2023).
Thus, the Court overrules the Objections, accepts the Report, and
adopts it as its own findings and conclusions.
Accordingly, it is ordered that:
1. Defendants’ Motion to Dismiss Plaintiff’s claims (Dkt. 51) is
GRANTED IN PART: the Motion to Dismiss Plaintiff’s Eighth
Amendment excessive force claims (Claims One through Four) is
GRANTED and Claims One through Four are DISMISSED WITH
PREJUDICE; the Motion to Dismiss Plaintiff’s Eighth Amendment
deliberate indifference claim against Defendant Filamore-Angel (Claim
Five) is DISMISSED WITH LEAVE TO AMEND; and the Motion to
Dismiss Plaintiff’s Federal Tort Claims Act claim for intentional
infliction of emotional distress (Claim Six) is DENIED.
2. Plaintiff may file a Fourth Amended Complaint that cures the
pleading defects set forth in the Report no later than thirty (30) days
from the date of this Order. Plaintiff is cautioned that any Amended
Complaint must be complete in itself without reference to any prior
complaint or any other document, and it may not add any new claims
or new defendants without prior leave of the Court.
3. If Plaintiff does not file a Fourth Amended Complaint within
thirty (30) days of the date of this Order, Defendant United States shall

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file an Answer to Claim Six of the Third Amended Complaint no later
than fourteen (14) days from the expiration of Plaintiff’s time to file a
Fourth Amended Complaint (i.e., forty-four (44) days from the date of
this Order.
4. The Request for Judicial Notice (Dkt. 72) is DENIED without
prejudice.
5. The Clerk shall serve this Order and the Report on all counsel or
parties of record.
IT IS SO ORDERED.

Date: March 26, 2024

___________________________
D l S
Fi h
Dale
S. Fischer
United States District Judge

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