Lull v. County of Sacramento et al

Filing 21

ORDER signed by District Judge Troy L. Nunley on 3/30/2018 ADOPTING 15 Findings and Recommendations in full, except as provided by footnote 1 of this Order, GRANTING 5 Motion to Dismiss, and GRANTING 10 Motion to Dismiss. Plaintiff is granted 30 days from the date of this Order is filed to file an amended complaint as provided in the magistrate judge's findings and recommendations. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LULL,

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No. 2:17-cv-01211-TLN-EFB

Plaintiff,
v.

ORDER

COUNTY OF SACRAMENTO, et al.,
Defendants.

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On March 1, 2018, the magistrate judge filed findings and recommendations herein, which

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

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recommendations were to be filed within fourteen days. (ECF No. 15.) Plaintiff filed objections

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on March 14, 2018. (ECF No. 17.) Defendants filed objections on March 15, 2018 (ECF No.

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18), and a response to Plaintiff’s objections on March 20, 2018 (ECF No. 19).

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This Court reviews de novo those portions of the proposed findings of fact to which

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objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore

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Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As

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to any portion of the proposed findings of fact to which no objection has been made, the Court

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assumes its correctness and decides the motions on the applicable law. 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 Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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The Court has reviewed the applicable legal standards and, good cause appearing,
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concludes that it is appropriate to adopt the findings and recommendations in full, except as

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identified in the accompanying footnote. 1 Accordingly, IT IS ORDERED that:

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1. The findings and recommendations filed March 1, 2018 (ECF No. 15), are adopted in
full, except as provided by footnote 1 of this Order.

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2. The County of Sacramento’s motion to dismiss (ECF No. 5) is granted.

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3. Defendants Stewart and Doane’s motion to dismiss (ECF No. 10) is granted.

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4. In summary,
a. Plaintiff’s first claim (“Unreasonable Search and Seizure”) against Defendant

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Stewart is dismissed without leave to amend.
b. Plaintiff’s second claim (“Substantive Due Process”) against Defendants

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Stewart, Doane, and County of Sacramento is dismissed without leave to amend.
c. Plaintiff’s third claim (“Equal Protection”) against Defendants Stewart, Doane,

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and County of Sacramento is dismissed without leave to amend.
d. Plaintiff’s fourth claim (“Retaliation for Exercise of Free Speech”) against

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Defendant Stewart is dismissed with leave to amend.
e. The Court declines to exercise jurisdiction over Plaintiff’s fifth claim

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(“Violation of CA Bane Act”) against Defendant Stewart.

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5. Plaintiff is granted thirty days from the date of this Order is filed to file an amended

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complaint as provided in the magistrate judge’s findings and recommendations. The amended

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complaint must bear the docket number assigned to this case and must be labeled “Second

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Amended Complaint.”

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Dated: March 30, 2018

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Troy L. Nunley
United States District Judge

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The magistrate judge recommends that “Plaintiff’s First Amendment claim be dismissed with leave to
amend.” (ECF No. 15 at 15.) The Court agrees with this recommendation and the magistrate judge’s underlying
analysis. (ECF No. 15 at 12–15.) For this reason, the Court declines to adopt the following sentence from the
findings and recommendations: “Should plaintiff fail to timely file an amended complaint, this action will proceed
on plaintiff’s First Amendment claim against defendant Stewart.” (ECF No. 15 at 15.)

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