Forte v. Merced County, et al.
Filing
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ORDER Adopting 27 Findings and Recommendations, signed by District Judge Dale A. Drozd on 2/25/16. Amended Complaint Due Within Thirty Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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EUGENE E. FORTE,
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No. 1:15-cv-0147-KJM-BAM
Plaintiff,
v.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
MERCED COUNTY, et al.,
(Doc. No. 27)
Defendants.
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On August 24, 2015, Plaintiff Euguene Forte filed his first amended complaint in this
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action seeking relief in connection with alleged constitutional violations against numerous
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defendants. (Doc. No. 18.) The matter was referred to United States Magistrate Judge Barbara
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A. McAuliffe pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On January 13, 2016, the assigned Magistrate Judge issued findings and recommendations
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recommending that plaintiff’s first claim of relief against defendants Merced County, Larry
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Morse, Mark Pazin, Alan Turner, James Fincher, James Padron, Jerry O’ Banion, Merced County
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Deputies Chris Jaskowiak, Chris Picinich, Mike Hill, Adam Leuchner, Merced County Sherriff’s
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Department, Merced County Counsel’s Office, City of Los Banos, LB Chief Gary Brizzee, LB
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Officer Anthony Parker, McLatchy Newspapers, and Corey Pride be dismissed with prejudice on
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res judicata grounds. (Doc. No. 27.) The magistrate judge also recommended that the remainder
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of plaintiff’s complaint be dismissed with leave to amend for failure to state a claim. (Id.) Those
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findings and recommendations were served on plaintiff and contained notice that any objections
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thereto were to be filed within fifteen days of service of the order. (Id.) On January 29, 2016,
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plaintiff filed his objections. (Doc. No. 28.)
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In his objections, plaintiff contends that the assigned magistrate judge erred in referring to
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his related lawsuit (Forte v. Merced County, Case No. 1:11-cv-318-AWI-BAM (E.D. Cal.) —
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dismissed with prejudice), while failing to refer to his other lawsuit (Forte v. Merced County,
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Case No. 1:11-cv-718-AWI-BAM (E.D. Cal.), where the jury awarded what plaintiff
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characterizes as “rare punitive damages.” (Doc. No. 28 at 3-4.) As noted by the magistrate
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judge, the court may take notice of facts that are capable of accurate and ready determination by
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resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United
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States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The court’s docket is a source whose
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accuracy cannot reasonably be questioned, and judicial notice may be taken of court records.
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Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise
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Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981).
It was not error for the magistrate judge to refer to previous actions filed by plaintiff1 in
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which he asserted the same causes of action that he has attempted to present in this action in
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determining whether his instant complaint is barred by res judicata. That plaintiff received a
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punitive damages award in a different action on a different claim, obviously has no bearing on
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whether plaintiff’s first claim for relief in the instant complaint is barred by res judicata.
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Plaintiff’s remaining objections to the findings and recommendations do not address the
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underlying determination by the assigned magistrate judge that plaintiff’s other claims for relief
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presented in his instant complaint fail to state cognizable claims and provide no basis upon which
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to award him the monetary relief he seeks.
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In accordance with the provisions of Title 28 of the United States Code section
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636(b)(1)(c), this court has conducted a de novo review of the case. Having carefully reviewed
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the entire file, the court finds that the findings and recommendations are supported by the record
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As acknowledged by plaintiff, he is a frequent litigator in this court.
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and proper analysis.
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Based upon the foregoing:
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1. The Findings and Recommendations (Doc. No. 27), filed January 13, 2016, are
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ADOPTED IN FULL;
2. Plaintiff’s Claim 1 is DISMISSED with prejudice, based upon the res judicata doctrine
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as to defendants Merced County, Larry Morse, Mark Pazin, Alan Turner, James
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Fincher, James Padron, Jerry O’ Banion, Merced County Deputies Chris Jaskowiak,
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Chris Picinich, Mike Hill, Adam Leuchner, Merced County Sherriff’s Department,
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Merced County Counsel’s Office, City of Los Banos, LB Chief Gary Brizzee, LB
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Officer Anthony Parker, McLatchy Newspapers, and Corey Pride;
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3. Plaintiff is granted leave to file a second amended complaint within thirty (30) days
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from the date of service of this order;
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4. Any second amended complaint plaintiff may elect to file is limited to 25 pages,
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exclusive of exhibits and will be stricken from the record if it violates this page
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limitation; and
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5. If plaintiff fails to file a second amended complaint within the time provided herein,
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this action will be dismissed for failure to prosecute and failure to obey a court order.
IT IS SO ORDERED.
Dated:
February 25, 2016
UNITED STATES DISTRICT JUDGE
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