Harvey v. City of South Lake Tahoe et al

Filing 36

ORDER signed by Judge Kimberly J. Mueller on March 30, 2013. Granting each of the three motions to dismiss 4 , 8 , and 19 ; adopting 32 FINDINGS AND RECOMMENDATIONS; directing Clerk to CLOSE CASE. (Andrews, P)

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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. 2:10-cv-1653-KJM-EFB PS

vs.
CITY OF SOUTH LAKE TAHOE;
et al.,

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Defendants.
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_________________________________/
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DANIEL THOMAS HARVEY,
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Plaintiff,

No. 2:12-cv-526-KJM EFB PS

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vs.
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CITY OF SOUTH LAKE TAHOE;
et al.,

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Defendants.

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ORDER

__________________________________/

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On February 21, 2013, the magistrate judge filed findings and recommendations

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in the above-captioned cases, which were served on the parties and which contained notice that

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any objections to the findings and recommendations were to be filed within fourteen days.

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Plaintiff filed objections on March 6, 20131, and defendants filed responses thereto on March 13,

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2013. Also, on March 22, 2013, plaintiff filed a motion for recusal of the assigned magistrate

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judge. The undersigned has considered all of these filings.

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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. The court also finds that plaintiff has not demonstrated that recusal of the

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assigned magistrate judge is warranted.

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Accordingly, with regard to plaintiff’s first action, 2:10-cv-1653-KJM-EFB, IT IS
HEREBY ORDERED that:

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1. The Findings and Recommendations filed February 21, 2013, are ADOPTED.

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2. Defendants’ motion to dismiss, Dckt. No. 63, is granted, with leave to amend

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as provided in the magistrate judge’s findings and recommendations. Specifically, plaintiff is

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permitted to amend his § 1983 Monell claim against the City and his § 1983 claim against

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defendants Eissinger and Duke. He is further permitted to include in any fourth amended

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complaint his § 1983 claims against defendants Herminghaus and Laney and/or a § 1983 Monell

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claim against El Dorado County based only on the County’s alleged failure to provide him water

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and the alleged resulting shoulder injury while in the jail after the Brick Incident.

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3. Plaintiff is provided forty-five days from the date of this order to file a fourth

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amended complaint as narrowed above. If plaintiff does not file a fourth amended complaint

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within the time prescribed, the assigned magistrate judge may recommend that this action be

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dismissed for failure to prosecute.

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/////

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Although plaintiff’s objections were only filed in Case No. 2:10-cv-1653-KJM-EFB PS,
the court has reviewed them as they apply to the magistrate judge’s recommendations in both of the
above-captioned cases.
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4. Plaintiff’s motion for recusal of the assigned magistrate judge, Dckt. No. 77, is
denied.

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With regard to plaintiff’s second action, 2:12-cv-526-KJM-EFB, IT IS
FURTHER ORDERED that:

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1. Each of the three motions to dismiss, Dckt. Nos. 4, 8, and 19, are granted
without leave to amend.2

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2. The Clerk is directed to close case no. 2:12-cv-526-KJM-EFB PS.
DATED: March 30, 2013.

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UNITED STATES DISTRICT JUDGE

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As noted in the magistrate judge’s findings and recommendations, some of the claims in
plaintiff’s second action may be asserted in any fourth amended complaint filed in the first action.
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