Bashkin v. San Diego County et al
Filing
142
ORDER Construing Plaintiff's Letter as a Motion to Amend the Pretrial Order and denying the 132 Motion. Signed by Judge Anthony J. Battaglia on 3/8/12.
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Paul Bashkin,
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Plaintiff,
v.
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San Diego County, et al.,
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Defendants.
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Civil No. 08cv1450 AJB (WVG)
Order Construing Plaintiff’s Letter
as a Motion to Amend the Pretrial
Order and Denying the Motion
[Doc. No. 132]
In the Plaintiff’s letter of December 29, 2011, Doc. No. 132, the Plaintiff states that while he did
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not include a First Amendment claim in the trial documents he filed on December 23, 2011, he
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nonetheless believes that a First Amendment claim was sufficiently pled in his First Amended
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Complaint (“FAC”). Specifically, the Plaintiff asserts that his freedom of assembly and free speech
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rights were violated by Defendants and that these allegations are set forth in the FAC. The Court
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construes the Plaintiff’s letter, Doc. No. 132, as a motion to amend the Pretrial Order, Doc. No. 101,
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entered on May 6, 2011.
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The Court’s review of Plaintiff’s pleadings in this case has failed to reveal any mention of
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Plaintiff’s alleged First Amendment violations. The Plaintiff's initial complaint, Doc. No. 1, filed on
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August 8, 2009, contained only two causes of action: 1) deprivation of rights under 42 U.S.C. § 1983,
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characterized as:
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08cv1450
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a.
Unlawful search and seizure and use of excessive force in violation of plaintiff’s 4th .
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Deprivation of liberty in violation of plaintiff’s 14th Amendment rights when defendants
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unlawfully restrained him. Plaintiff also filed a claim against the city of San Diego
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b.
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defendants to engage in unlawful behavior.
and 2) conspiracy to interfere with civil rights under 42 U.S.C. § 1985, characterized as:
Named defendants conspired with casino employees to interfere with plaintiff’s 4th and 14th
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San Diego County Sheriff’s Department maintained a policy that allowed named
Amendment rights. § 1985 has three components:
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i.
Preventing an officer from performing duties;
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Obstructing justice;
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Depriving a person’s rights and privileges.
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After the Court’s Order granting in part and denying in part Defendants’ motion for summary
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judgment, Doc. No. 53, filed on May 20, 2010, the Plaintiff filed a First Amended Complaint (“FAC”),
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Doc. No. 75, on October 22, 2010, to cure certain defects in his second cause of action, however, no
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First Amendment violations were raised or pled by the Plaintiff in the FAC.
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After the Court’s Order granting in part and denying in part Defendants’ motion to dismiss, Doc.
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No. 85, filed January 27, 2011, the Plaintiff’s remaining two causes of actions were for : (1) deprivation
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of rights pursuant to 42 U.S.C. § 1983 due to unlawful search and seizure; and (2) conspiracy to
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interfere with civil rights pursuant to 42 U.S.C. § 1985; (a) § 1985(2), obstructing justice; and §
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1985(3), depriving a person of rights and privileges. Again, there is no mention of the Plaintiff’s alleged
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First Amendment claims.
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For a district court to have original jurisdiction over federal question cases, the well-pleaded
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complaint rule requires the Plaintiff to raise the federal law issue on the face of the complaint. Louisville
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& Nashville R. Co. v. Mottley, 211 U.S. 149 (1908). Based upon the foregoing, the Court finds that the
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08cv1450
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Plaintiff has not made any showing that he ever pled any First Amendment violations in his initial or
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amended complaints. As such, the Plaintiff’s motion to amend the Pretrial Order, Doc. No. 132, to add
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his new First Amendment claims is DENIED.
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IT IS SO ORDERED.
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DATED: March 8, 2012
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Hon. Anthony J. Battaglia
U.S. District Judge
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08cv1450
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