Elfand v. Sonoma County Men's Adult Detention Facility

Filing 20

ORDER GRANTING IN PART MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION; STRIKING DEFENDANT COGBILL by Judge William Alsup granting in part 19 Motion for Leave to File (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 4/4/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JONATHAN CRAIG ELFAND,

No. C 11-0863 WHA (PR)

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Plaintiff,
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For the Northern District of California

United States District Court

v.
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COUNTY OF SONOMA; SONOMA
COUNTY SHERIFF-CORONER
STEVE FREITAS,

ORDER GRANTING IN PART
MOTION FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION;
STRIKING DEFENDANT COGBILL

(Docket No. 19)

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Defendants.
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Plaintiff filed this pro se civil rights action under 42 U.S.C. 1983 against the Sonoma
County Men’s Adult Detention Facility (“MADF”). He has since been released from MADF

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and now resides in New Jersey. Following a review of plaintiff’s complaint under 28 U.S.C.
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1915(a), service was ordered upon MADF. The Sonoma County Counsel specially appeared on
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behalf of the Sonoma County Sheriff-Coroner (“Sheriff”), and filed a motion to dismiss. On
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March 13, 2012, the motion to dismiss was granted in part and denied in part, and certain claims
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were dismissed. In addition, pursuant to the plaintiff’s request, current Sheriff Steve Freitas and
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the former Sheriff William Cogbill were added as defendants in place of MADF, which was
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stricken as a defendant because it is not a “person” subject to suit under Section 1983. The
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newly added defendants were ordered to file a motion for summary judgment within ninety
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days.
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Sonoma County Counsel has filed a motion for leave to file a motion for reconsideration
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and for clarification of the portion of the order of March 13 that adds Freitas and Cogbill as
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defendants. Counsel points out correctly that plaintiff requested that Sonoma County also be

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added as a defendant, and that the order is not clear whether Freitas and Cogbill were added in

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their official or personal capacities. Counsel argues that Freitas and Cogbill need to be served

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with the summons and complaint. In addition, if they are sued in their personal capacities, they

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should have an opportunity to move to dismiss the complaint on the grounds of qualified

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immunity. Counsel indicates that if Freitas and Cogbill are sued in their official capacities, the

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County of Sonoma and Sheriff Freitas would make a general appearance and waive objection to

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service based upon the prior service of MADF, but that Cogbill should not be added as a

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defendant in his official capacity because he is no longer a public official. See Fed. R. Civ. P.

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17(d).
Plaintiff did request to add the County of Sonoma as a defendant, and he did not specify

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For the Northern District of California

United States District Court

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whether he wanted to add Freitas and Cogbill in their official or personal capacities.

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Defendants’ motion for leave to file a motion for reconsideration and for clarification (docket

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number 19) is GRANTED IN PART, as follows:

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1.

As County Counsel does not object to adding the County of Sonoma and Sheriff

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Freitas in his official capacity as defendants, and these defendants will make a general

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appearance, the County of Sonoma and Freitas in his official capacity are added as defendants,

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and Cogbill will be STRICKEN as a defendant.

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2.

Plaintiff may, within 28 days of the date this order is filed, file a motion to add

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Freitas or Cogbill in their personal capacities. He must include in such motion their current,

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accurate locations so that they can be served. If plaintiff files such a motion, the case will be

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stayed in order for the Marshal to serve them, and once they are served they will be afforded an

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opportunity to file a motion to dismiss. If plaintiff does not seek to sue Freitas or Cogbill in

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their personal capacities, this case will proceed against the County of Sonoma and Sheriff

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Freitas in his official capacity.

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IT IS SO ORDERED.

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Dated: April

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, 2012.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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