(PS) Gunn v. County of Butte et al

Filing 28

ORDER signed by Chief District Judge Kimberly J. Mueller on 3/31/2021 ADOPTED in PART 27 Findings and Recommendations. The motion to dismiss 20 is GRANTED with leave to amend in part. Any second amended complaint must be filed within 30 days of the date of this order. This case is again REFERRED back to the assigned magistrate judge for all pretrial proceedings, as provided by this District's local rules. (Reader, L)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLAYTON GUNN, JR., 12 Plaintiff, 13 14 No. 2:19-CV-1729-KJM-DMC v. ORDER COUNTY OF BUTTE, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil action under § 1983 and California 18 state law based on his allegations that local officials and courts illegally arrested, detained, and 19 prosecuted him, among other wrongs. The matter was referred to a United States Magistrate 20 Judge as provided by this court’s local rules. On February 26, 2021, the Magistrate Judge filed 21 findings and recommendations in response to a motion to dismiss filed by many of the 22 defendants. ECF No. 27. These findings and recommendations were served on the parties and 23 contained notice that any party may file objections within fourteen days. No objections to the 24 findings and recommendations have been filed. Having reviewed the file, the court orders as 25 follows. 26 Under this District’s Local Rules, an amended complaint may not incorporate a previous 27 complaint by reference. See E.D. Cal. L.R. 220 (“Unless prior approval to the contrary is 28 obtained from the Court, every pleading to which an amendment or supplement is permitted as a 1 1 matter of right or has been allowed by court order shall be retyped and filed so that it is complete 2 in itself without reference to the prior or superseded pleading.”). The court has thus disregarded 3 all references to the original complaint in the First Amended Complaint, as recommended by the 4 magistrate judge. See F&Rs at 14. 5 I. 6 IMMUNITIES The claims against the Butte County Superior Court are dismissed without leave to 7 amend. See Hyland v. Wonder, 117 F.3d 405, 413 (9th Cir.), as amended on denial of reh’g, 127 8 F.3d 1135 (9th Cir. 1997) (holding Superior Court is an “arm of the state of California” and 9 immune from suit under Eleventh Amendment). The remainder of this order relates only to the 10 other defendants. 11 Those defendants do not object to the magistrate judge’s finding and recommendation that 12 the complaint may plausibly be construed as asserting some claims to which they would not be 13 immune under the Eleventh Amendment or their absolute prosecutorial immunity. See F&Rs at 14 16–17, ECF No. 27. The court adopts that conclusion. 15 Defendants Ramsey, Tufano, Honea, and Thao assert their qualified immunity. See Mot. 16 Dismiss at 15, ECF No. 20-1. As explained below, the First Amended Complaint does not 17 include allegations that “make out a violation of a constitutional right.” Pearson v. Callahan, 555 18 U.S. 223, 232 (2009). Defendants Ramsey, Tufano, Honea, and Thao are thus entitled to 19 qualified immunity in the face of the First Amended Complaint’s federal claims. The court need 20 not and does not consider whether the relevant law was clearly established at the time of the 21 alleged violations. 22 II. RULES 8(A) AND 12(B)(6). 23 The first claim, for malicious prosecution in violation of 42 U.S.C. § 1983, is dismissed 24 with leave to amend. The First Amended Complaint does not include factual allegations that 25 allow the court to infer that plaintiff was prosecuted without probable cause and that all relevant 26 “prior proceedings terminated in such a manner as to indicate [plaintiff’s] innocence.” Awabdy v. 27 City of Adelanto, 368 F.3d 1062, 1067–68 (9th Cir. 2004). 28 ///// 2 1 2 The second claim, also for malicious prosecution in violation of 42 U.S.C. § 1983, is dismissed without leave to amend as duplicative of the first claim. 3 The third and fourth claims, false arrest and false detention in violation of 42 U.S.C. 4 § 1983, are dismissed with leave to amend. The First Amended Complaint does not include 5 factual allegations that allow the court to infer that plaintiff was detained without probable cause. 6 See Baker v. McCollan, 443 U.S. 137, 143 (1979). 7 The fifth claim, for cruel and unusual punishment in violation of 42 U.S.C. § 1983, is 8 dismissed with leave to amend. The First Amended Complaint does not include factual 9 allegations that allow the court to infer the defendants were deliberately indifferent to plaintiff’s 10 serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104–06 (1976). Nor does plaintiff 11 allege he had been convicted at the time of the allegedly unconstitutional medical treatment. See 12 Bell v. Wolfish, 441 U.S. 520, 535–36 (1979). 13 The sixth and eighth claims, for intentional infliction of emotional distress, defamation, 14 and false light, are dismissed with leave to amend. These claims are derivative of plaintiff’s 15 federal claims. See First Am. Compl. at 19, 20–21. 16 The seventh and ninth claims, deprivation of due process rights and “campaign of 17 harassment for violations of civil rights,” both in violation of 42 U.S.C. § 1983, are dismissed 18 with leave to amend. The complaint does not include a short and plain statement of the basis for 19 the defendants’ liability. See Fed. R. Civ. P. 8(a)(2). 20 III. 21 22 CONCLUSION 1. The magistrate judge’s findings and recommendations are adopted in part as described above; the motion to dismiss is granted with leave to amend in part. 23 2. Any second amended complaint must be filed within 30 days of the date of this order. 24 3. This case is again referred back to the assigned magistrate judge for all pretrial 25 proceedings, as provided by this District’s local rules. 26 This order resolves ECF Nos. 20 and 27. 27 IT IS SO ORDERED. 28 DATED: March 31, 2021.

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