Kent v. California Department of Consumer Affairs et al
Filing
47
ORDER signed by Judge Kimberly J. Mueller on 9/26/11 ADOPTING except with respect to plaintiff's third claim for relief 42 Findings and Recommendations; GRANTING IN PART AND DENYING IN PART 28 Motion to Dismiss; Plaintiff's first, secon d, fourth, fifth and seventh claims for relief are DISMISSED with prejudice; Plaintiff's third and sixth claims for relief are DISMISSED without prejudice; Plaintiff shall incorporate the claims he believes are not time-barred in any amendment o f his third claim for relief, based on the information presented in his objections. Plaintiff is GRANTED leave to file a tenth amended complaint that attempts to cure the pleading deficiencies in plaintiff's third and sixth claims for relief an d re-alleges plaintiff's eight and ninth claims for relief as provided in the magistrate judge's findings and recommendations. This matter is REFERRED back to magistrate judge for entry of any order that judge deems appropriate addressing the nature and timing of the further amended complaint tobe filed by plaintiff. (Meuleman, A)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
JOHN KENT,
Plaintiff,
11
12
13
14
No. CIV-S-09-02905 KJM KJN PS
vs.
CALIFORNIA DEPARTMENT OF
CONSUMER AFFAIRS,
CONTRACTORS STATE LICENSE
BOARD, et al.,
15
16
Defendants.
__________________________________/
ORDER
17
18
In this case, plaintiff is proceeding pro se, and has brought a number of claims
19
including claims based on alleged violations of civil rights under 42 U.S.C. § 1983. On June 28,
20
2011, the magistrate judge filed findings and recommendations, which were served on the parties
21
and which contained notice to the parties that any objections to the findings and
22
recommendations were to be filed within fourteen days. Although no timely objections to the
23
findings and recommendations were filed, the court will consider plaintiff’s objections filed on
24
July 18, 2011 (ECF No. 46).
25
26
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule
304, this court has conducted a de novo review of this case. Having carefully reviewed the file,
1
1
the court finds the findings and recommendations to be supported by the record and by the
2
proper analysis, with the exception of the analysis and recommendation regarding plaintiff’s
3
third claim for relief.
4
Accordingly, IT IS HEREBY ORDERED that:
5
1. The Findings and Recommendations filed on June 28, 2011, are ADOPTED,1
6
except with respect to plaintiff’s third claim for relief.2
7
2. The motion to dismiss plaintiff’s Ninth Amended Complaint filed by
8
defendants Kevin Carr, Thomas Ebling, Jim Kleiman, Rick Lopez, Patricia Nelson, Sue Payne,
9
Diana Roach, Anita Sisneros, Sue Stirewalt, Stephen Takimoto, Carl Vega, Rick Villucci and
10
Leslie Yocum-Howell is granted in part and denied in part.
3. Plaintiff’s first, second, fourth, fifth and seventh claims for relief are dismissed
11
12
with prejudice.
13
4. Plaintiff’s third and sixth claims for relief are dismissed without prejudice.
14
Plaintiff shall incorporate the claims he believes are not time-barred in any amendment of his
15
third claim for relief, based on the information presented in his objections.
5. Plaintiff is granted leave to file a tenth amended complaint that attempts to
16
17
cure the pleading deficiencies in plaintiff’s third and sixth claims for relief and re-alleges
18
plaintiff’s eighth and ninth claims for relief as provided in the magistrate judge’s findings and
19
recommendations.
20
/////
21
1
22
23
The court notes that DiCampli-Mintz v. County of Santa Clara, cited in the findings and
recommendations at page 20, has been accepted for review by the California Supreme Court.
DiCampli- Mintz v. County of Santa Clara, 257 P.3d 1130, 129 Cal. Rptr. 3d 325 (Aug. 10, 2011).
2
24
25
26
The magistrate judge recommends dismissing this claim as time-barred due to plaintiff’s
specific reference to only the October 13, 2005 incident in his complaint. (Ninth Am. Compl.
¶¶ 105-109.) However, as plaintiff maintains in his objections to the findings and
recommendations, he intended to incorporate allegations which are not time-barred. (Pl.’s Obj. to
F&R at 2.) Given the liberal pleading standard afforded pro se litigants, the court grants plaintiff
leave to amend this claim.
2
1
6. This matter is referred back to magistrate judge for entry of any order that
2
judge deems appropriate addressing the nature and timing of the further amended complaint to
3
be filed by plaintiff.
4
DATED: September 26, 2011.
5
6
7
UNITED STATES DISTRICT JUDGE
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?