Arnold v. County of El Dorado

Filing 65

ORDER signed by Judge Kimberly J. Mueller on 7/5/2012 FINDINGS AND RECOMMENDATIONS 24 are ADOPTED; Defendants' motion to dismiss and to strike # 17 is GRANTED in PART and DENIED in PART as set forth in the F & R's; specifically, the seco nd amended complaint shall proceed without further amendment, but with modifications (described in this order); Defendants shall file an answer to the Second Amended Complaint as modified by the F & R's within 14 days of the filed date of this order.(Reader, 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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PENNY ARNOLD,
Plaintiff,

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vs.

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COUNTY OF EL DORADO, et al.,
Defendants.

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CIV S-10-3119 KJM GGH PS

ORDER

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On November 23, 2011, 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. On February 13, 2012, plaintiff was

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re-served with the findings and recommendations. No objections were filed.
The court presumes that any findings of fact are correct. See Orand v. United

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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

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1983). Having carefully reviewed the file, the court finds the findings and recommendations to

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be supported by the record and by the proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed November 23, 2011 are ADOPTED.

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2. Defendants’ motion to dismiss and to strike, filed on October 7, 2011 (ECF

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No. 17), is granted in part and denied in part as set forth in the Findings and Recommendations.

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Specifically, the second amended complaint shall proceed without further amendment, but with

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the following modifications:

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a. The first cause of action is dismissed.

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b. The second cause of action is construed to state a claim for excessive force

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only.

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c. The third cause of action is construed to state a claim for excessive force only.

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d. All references to unreasonable or wrongful seizure or detention are stricken,

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including those terms specified in the Findings and Recommendations on page 5.
e. Plaintiff’s Monell claim against the County shall proceed only in regard to

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plaintiff’s excessive force claim.
3. Defendants shall file an answer to the Second Amended Complaint as

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modified by the Findings and Recommendations within fourteen days of the filed date of this

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order.

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DATED: July 5, 2012.

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UNITED STATES DISTRICT JUDGE

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