Fetter v. Bonner, et al.,

Filing 25

ORDER signed by Judge Garland E. Burrell, Jr. on 4/29/2013 ORDERING that the 17 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff is GRANTED fourteen (14) days from the date on which this order is filed to file an amended complaint addressing the deficiencies in any dismissed claim against Defendants Placer County Sheriff Edward Bonner and the County of Placer. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE FETTER,
Plaintiff,

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v.

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PLACER COUNTY SHERIFF, EDWARD N.
BONNER individually and in his
Official Capacity; COUNTY OF
PLACER; CALIFORNIA FORENSICS
MEDICAL GROUP (CFMG); and PLACER
COUNTY SHERIFF DEPARTMENT,
Defendants.
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2:12-cv-02235-GEB-EFB
ORDER DENYING IN PART AND
GRANTING IN PART MOTION TO
DISMISS

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Defendants Placer County Sheriff Edward Bonner and the County

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of Placer move under Federal Rule of Civil Procedure 12(b)(6) for

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dismissal of Plaintiff’s first, third, fourth, and seventh claims in

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Plaintiff’s complaint, for the following reasons: “1) the Placer County

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Sheriff’s Dept. is not a person that can be sued under 42 U.S.C. Section

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1983; 2) Sheriff Bonner should not be named in his official capacity in

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the Section 1983 claim because plaintiff already named the County of

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Placer – adding the Sheriff in his official capacity is redundant; 3)

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plaintiff has not alleged direct involvement on the part of Sheriff

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Bonner that would support a Section 1983 claim against him in his

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individual capacity; 4) plaintiff has not alleged an unconstitutional

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custom, policy, or practice that can support a Monell claim against

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either Sheriff Bonner in his official capacity or the County of Placer;

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5)

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constitutional rights are impermissibly conclusory and implausible; 6)

plaintiffs

allegations

of

a

conspiracy

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to

violate

plaintiff’s

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Sheriff Bonner should not be named in his individual capacity for claims

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based on disability discrimination statutes since those go against the

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employer, not employees; 7) the ADA and Rehabilitation Act claims cannot

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be made for what are essentially medical malpractice claims.” (Defs.

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Placer County Sheriff Edward Bonner & County Placer’s Mem. P. & A. Supp.

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Mot. Dismiss (“Mot”), ECF No. 17-1, 1:3-18.)

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the motion or file a statement of non-opposition to the motion as

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required by Local Rule 230. E.D. Cal. R. 230(c).

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Plaintiff did not oppose

Since the movants have not shown that they have standing to

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bring a motion on behalf of the Placer County Sheriff’s Department, this

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portion of the motion is denied.

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Further, since review of the challenged claims reveals that

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Plaintiff’s conclusory allegations against Defendants Placer County

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Sheriff Edward Bonner and the County of Placer are insufficient to state

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actionable claims, Plaintiff’s first, third, fourth, and seventh claims

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are dismissed against these movant Defendants.

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However, Plaintiff is granted fourteen (14) days from the date

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on which this order is filed to file an amended complaint addressing the

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deficiencies in any dismissed claim against Defendants Placer County

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Sheriff Edward Bonner and the County of Placer. Plaintiff is warned that

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a

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Plaintiff fails to file an amended complaint within the prescribed time

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period.

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Dated:

dismissal

with

prejudice

could

be

entered

under

Rule

41(b)

April 29, 2013

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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if