Jones et al v. Tulare County et al

Filing 109

ORDER ADOPTING FINDINGS and RECOMMENDATIONS That Defendants' Motions to Dismiss be GRANTED IN PART and DENIED IN PART 78 , 88 , 106 , signed by Chief Judge Lawrence J. O'Neill on 5/10/2018: This action is referred back to the assigned magistrate judge for further proceedings. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM FABRICIUS,

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Plaintiff,
v.

Case No. 1:15-cv-01779-LJO-EPG
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS THAT
DEFENDANTS’ MOTIONS TO DISMISS BE
GRANTED IN PART AND DENIED IN PART

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TULARE COUNTY, et al.,

(ECF Nos. 78, 88, 106)

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Defendants.

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William Fabricius (“Plaintiff” or “William”), proceeding pro se and in forma pauperis,

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commenced this action against numerous defendants alleging claims under 42 U.S.C. § 1983 in

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connection with the seizure of twenty-five dogs. This action is now proceeding on Plaintiff’s

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Third Amended Complaint (“3AC”). The matter was referred to United States Magistrate Judge

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Erica P. Grosjean pursuant to 28 U.S.C. § 636(b)(1)(B).

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On September 29, 2017, Paul Grenseman filed a motion to dismiss the claims against him.

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(ECF No. 88). On September 1, 2017, the remaining defendants who have appeared filed a

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motion to dismiss this action. (ECF No. 78).

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On March 16, 2018, Magistrate Judge Grosjean issued findings and recommendations that

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all claims against Valeriano Saucedo, Thomas Elliott Hornburg, Ralph Mario Agnello, Cecile F.

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Shaffer, Kathleen Marie Bales-Lange, Lisa Marie Tennenbaum, and Zendajas, who have not been

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served in this action, should be dismissed with prejudice pursuant to 28 U.S.C. §1915(e)(2)(B);

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and Defendants’ motions to dismiss, (ECF Nos. 78, 88), should be granted as to all remaining

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claims and defendants, except Tulare County Sheriff Officers Bradley McLean and Lance Heiden
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for unreasonable force in violation of the Fourth Amendment. (ECF No. 106). The findings and

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recommendations were served on the parties with instructions that any objections must be filed

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within twenty-one days.

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On March 20, 2018, Defendants filed objections to the findings and recommendations,

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raising the affirmative defense that the claims of unreasonable force are barred by the applicable

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statute of limitations. (ECF No. 107). On April 9, 2018, Plaintiff filed his objections to the

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findings and recommendations. (ECF No. 108).

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a
de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s

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objections and Defendants’ objections, the Court finds the findings and recommendations to be

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supported by the record and by proper analysis. In their Objections, Defendants argue for the first

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time that Plaintiff’s excessive force claim is barred by the statute of limitations. The Court

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declines to address that newly-raised defense at this time.

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Accordingly, it is HEREBY ORDERED that:

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1. All claims against Valeriano Saucedo, Thomas Elliott Hornburg, Ralph Mario

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Agnello, Cecile F. Shaffer, Kathleen Marie Bales-Lange, Lisa Marie Tennenbaum,

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and Zendajas, who have not been served in this action, are dismissed with

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prejudice pursuant to 28 U.S.C. §1915(e)(2)(B);

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2. Defendants’ motions to dismiss, (ECF Nos. 78, 88), are granted as to all remaining

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claims and defendants, except Tulare County Sheriff Officers Bradley McLean and

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Lance Heiden for unreasonable force in violation of the Fourth Amendment; and

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3. This action is referred back to the assigned magistrate judge for further

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proceedings.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

May 10, 2018

UNITED STATES CHIEF DISTRICT JUDGE

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