Harvey v. City of South Lake Tahoe et al

Filing 56

ORDER signed by Judge Kimberly J. Mueller on 7/9/12 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 4/12/12 50 are ADOPTED. Defendant El Dorado County's Motion to Dismiss 40 is GRANTED without leave to amend; The City defendants' M otion to Dismiss 39 is GRANTED as follows: a. Any Monell claims against the City of South Lake Tahoe are dismissed with leave to amend. b. Any state law claims are dismissed without leave to amend; c. Any remaining federal claims against Officers E issinger and Duke are dismissed with leave to amend as narrowed by the magistrate judges findings and recommendations. Plaintiff is provided thirty days from the date of this order to file a third amended complaint. Plaintiff's request for a protective order is denied.(Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL THOMAS HARVEY,

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Plaintiff,

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No. CIV S-10-1653 KJM EFB PS

vs.
CITY OF SOUTH LAKE TAHOE;
EL DORADO COUNTY; ANDREW
EISSINGER; CHARLES DUKE,

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Defendants.

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ORDER

__________________________________/
On April 12, 2012, the magistrate judge filed findings and recommendations,

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

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and recommendations were to be filed within fourteen days. Plaintiff filed objections on April

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23, 2012, and they were considered by the undersigned.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court finds the findings and recommendations to be supported by the record and by the

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proper analysis.1 Plaintiff’s request for a protective order, made in his objections, is unsupported

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and is denied.

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The court notes that no criminal charges were brought against plaintiff and therefore Heck
v. Humphrey, 512 U.S. 477 (1994), is not implicated. ECF 38 at 38.
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Accordingly, IT IS ORDERED that:

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1. The Findings and Recommendations filed April 12, 2012, are ADOPTED.

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2. Defendant El Dorado County’s motion to dismiss, ECF No. 40, is granted

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without leave to amend.
3. The City defendants’ motion to dismiss, ECF No. 39, is granted as follows:

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a. Any Monell claims against the City of South Lake Tahoe are dismissed
with leave to amend.

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b. Any state law claims are dismissed without leave to amend;

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c. Any remaining federal claims against Officers Eissinger and Duke are

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dismissed with leave to amend as narrowed by the magistrate judge’s findings and

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recommendations.

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4. Plaintiff is provided thirty days from the date of this order to file a third

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amended complaint attempting to cure the deficiencies identified in the magistrate judge’s April

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12 findings and recommendations.

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5. Plaintiff’s request for a protective order is denied.
DATED: July 9, 2012.

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UNITED STATES DISTRICT JUDGE

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