Belyew v. Lorman et al

Filing 27

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/27/2017 GRANTING plaintiff's motion for leave to file an amended complaint and DISMISSING plaintiff's original complaint, and the Clerk shall assign a di strict judge to this case. IT IS RECOMMENDED that plaintiff's 22 motion for default judgment be denied and the Colusa Police Department be dismissed. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA BELYEW,

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Plaintiff,

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No. 2:17-cv-0723 CKD P

v.

ORDER AND

LARRY LORMAN, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a California prisoner proceeding pro se. On March 6, 2018, plaintiff filed an

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amended complaint. Defendant Lorman does not object to plaintiff’s request to amend and has,

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in fact, answered the amended complaint. In the spirit of Rule 15 of the Federal Rules of Civil

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Procedure, which generally allows a plaintiff to amend his/her pleadings one time as a matter of

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course in the early stages of a case, the court will dismiss plaintiff’s original complaint and screen

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the amended complaint as the court is required to do under 28 U.S.C. § 1915A.
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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Having conducted the required screening, the court finds that plaintiff may proceed on a

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claim arising under the Fourth Amendment against defendant Lorman. As for the other defendant

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identified, the Colusa Police Department, plaintiff fails to state a claim upon which relief can be

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granted as there are no allegations in the amended complaint suggesting the violation of Civil

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Rights alleged was the result of the adoption by the Colusa Police Department of unconstitutional

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policies. See Monell v. Dep't of Soc. Services of City of N.Y., 436 U.S. 658, 690 (1977).

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Since defendant Lorman has already answered the amended complaint, the court, by
separate order, will issue a scheduling and discovery order.

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The court notes that on February 20, 2018, plaintiff filed a motion asking that defendant

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Lorman be held in default. Plaintiff filed her amended complaint on March 2, 2018 and

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defendant Lorman filed his answer to the amended complaint on March 6, 2018. While Lorman

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did not file a timely answer to the original complaint, there is no basis for entry of default as to

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the now operative amended complaint. Accordingly, the court will recommend that plaintiff’s

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motion for default judgment be denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to file an amended complaint is granted;

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2. Plaintiff’s original complaint is dismissed; and

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3. The Clerk is directed to assign a district judge to this case.

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IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion for default (ECF No. 22) be denied; and

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2. The Colusa Police Department be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after

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being served with these findings and recommendations, plaintiff may file written objections with

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the court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: March 27, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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bely0723.1(a)

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