Ottovich v. City of Fremont et al

Filing 58

ORDER GRANTING DEFENDANTS VETERANS ADMINISTRATION PALO ALTO HEALTH CARE SYSTEM, JOANNE DROBICK, AND UNITED STATES OF AMERICA'S MOTION TO DISMISS THIRD AMENDED COMPLAINT; STRIKING FOURTH AMENDED COMPLAINT; VACATING HEARING. Signed by Judge Maxine M. Chesney on September 1, 2010. (mmclc2, COURT STAFF) (Filed on 9/1/2010)

Ottovich v. City of Fremont et al

Doc. 58

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is defendants Veterans Administration Palo Alto Health Care System, Joanne Drobrick, and the United States of America's ("Federal Defendants") Motion to Dismiss plaintiffs' Third Amended Complaint ("TAC"), filed July 15, 2010 ("Motion"), by which the Federal Defendants seek, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismissal of plaintiffs' TAC as to said United States District Court MARK OTTOVICH, HARVEY OTTOVICH, individuals, Plaintiffs, v. CITY OF FREMONT: CITY OF FREMONT POLICE OFFICERS, RICARDO CORTES AS DOE 1, SARGEANT HEININGE AS DOE 2, OFFICER SETTLE AS DOE 3, OFFICER DANG AS DOE 4, Farmer as doe 5, VETERANS ADMINISTRATION PALO ALTO HEALTH CARE SYSTEM AS DOE 6, VETERANS ADMINISTRATION PALO CARE SYSTEM EMPLOYEE JOANIE DROBRICK PATIENT ADVOCATE as Doe 7, DOES 8 THROUGH 25, Defendants. / No. CV-09-04181 MMC ORDER GRANTING DEFENDANTS VETERANS ADMINISTRATION PALO ALTO HEALTH CARE SYSTEM, JOANNE DROBICK, AND UNITED STATES OF AMERICA'S MOTION TO DISMISS THIRD AMENDED COMPLAINT; STRIKING FOURTH AMENDED COMPLAINT; VACATING HEARING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

defendants.1 No opposition has been filed. Rather, on August 13, 2010, plaintiffs filed a Fourth Amended Complaint, which the Federal Defendants ask be either stricken or "ignore[d]." (Reply at 2:9.) Having read and considered the papers filed in support of the motion, the Court deems the matter appropriate for determination thereon and rules as follows. As the Federal Defendants point out, the TAC's First, Fourth, and Fifth Causes of Action, each alleging a claim under 42 U.S.C. § 1983, cannot be pursued against the Federal Defendants because § 1983 applies only to state actors. (See Mot. at 15:13-25.) Additionally, plaintiffs fail to allege sufficient facts demonstrating said causes of action were brought within the applicable two-year statute of limitations. (See Mot. at 6:2 - 7:11.) Further, plaintiffs fail to allege sufficient facts demonstrating exhaustion of administrative remedies. (See Mot. at 13:12 - 14:19.) Accordingly, the Motion is hereby GRANTED, with leave to amend, and the abovereferenced Fourth Amended Complaint is hereby STRICKEN. If plaintiffs wish to file a Fourth Amended Complaint, any such amended pleading shall be filed no later than September 22, 2010.2 In light of the above, the hearing scheduled for September 3, 2010 is hereby VACATED. IT IS SO ORDERED.

Dated: September 1, 2010

MAXINE M. CHESNEY United States District Judge

Plaintiffs' First, Fourth, and Fifth Causes of Action are alleged against, inter alia, the Federal Defendants. (See TAC at 9, 11, 12.) By granting leave to amend, the Court makes no finding herein as to the sufficiency of the pleading filed on August 13, 2010. 2
2

1