Winters, et al v. Jordan, et al

Filing 326

ORDER adopting 311 FINDINGS AND RECOMMENDATIONS, signed by Judge John A. Mendez on 3/9/12. Defendant Delores Jordans motion to dismiss 257 ) is GRANTED in part and DENIED in part. Defendant David Silber's motion to dismiss 258 is GRANTED. All of plaintiffs' claims alleged against Silber are dismissed with prejudice, and Silber is dismissed from this action. Plaintiffs' motion for default judgment 189 is DENIED as to defendant Delores Jordan. (Kastilahn, A) (Kastilahn, A)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

BRENT ALLAN WINTERS, et al.,

11
12

Plaintiffs,

No. CIV-S-09-0522-JAM-KJN-PS

vs.

13

DELORES JORDAN, et al.,

14

Defendants.
__________________________________/

ORDER

15
16

On February 2, 2012, the magistrate judge filed findings and recommendations herein

17

which were served on the parties and which contained notice that any objections to the findings

18

and recommendations were to be filed within fourteen days (Dkt. No. 311). Although no party

19

filed timely objections to the findings and recommendations, plaintiffs filed untimely objections

20

to those findings and recommendations on March 2, 2012 (Dkt. No. 319). Despite the untimely

21

nature of plaintiffs’ objections, the court has considered those objections out of an abundance of

22

caution.

23

This court reviews de novo those portions of the proposed findings of fact to which an

24

objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore

25

Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see

26

also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed
1

1

findings of fact to which no objection has been made, the court assumes its correctness and

2

decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th

3

Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi

4

Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).

5
6

The court has reviewed the applicable legal standards and, good cause appearing,
concludes that it is appropriate to adopt the Proposed Findings and Recommendations in full.

7

Accordingly, IT IS ORDERED that:

8

1. The Proposed Findings and Recommendations filed February 2, 2012, are ADOPTED.

9

2. Defendant Delores Jordan’s motion to dismiss (Dkt. No. 257) is granted in part and

10

denied in part. Specifically, the following claims shall proceed:

11
12

a.

Plaintiffs’ seventh claim for relief (violation of rights of Equal Protection),

only to the extent that it is alleged by plaintiff Susan Winters against defendant Delores Jordan;

13

b.

Plaintiffs’ ninth claim for relief (civil battery), only to the extent that it is

14

alleged by plaintiffs Susan, Cacey, Christy, and Jennifer Winters against defendant Delores

15

Jordan;

16

c.

Plaintiffs’ tenth claim for relief (civil assault), only to the extent that it is

17

alleged by plaintiffs Susan, Cacey, Christy, and Jennifer Winters against defendant Delores

18

Jordan;

19

d.

Plaintiffs’ twelfth claim for relief (trespass); and

20

e.

Plaintiffs’ twenty-fifth claim for relief (invasion of privacy), only to the

21
22
23
24

extent that it concerns alleged intrusions on May 26, 2008, and June 2, 2008.
Plaintiffs’ remaining claims alleged against Jordan are dismissed with prejudice in all
other respects.
3. Defendant David Silber’s motion to dismiss (Dkt. No. 258) is granted. All of

25

plaintiffs’ claims alleged against Silber are dismissed with prejudice, and Silber is dismissed

26

from this action.
2

1

4. Plaintiffs’ motion for default judgment (Dkt. No. 189) is denied as to defendant

2

Delores Jordan.

3

DATED: March 9, 2012

4
5

/s/ John A. Mendez
UNITED STATES DISTRICT COURT JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3