Foley v. Oceanside Police Department et al

Filing 86

ORDER Adopting 79 Report and Recommendation and Providing Plaintiff with Specific Instructions Regarding Further Proceedings. Signed by Judge Cathy Ann Bencivengo on 3/13/2017. (All non-registered users served via U.S. Mail Service) (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY D. FOLEY,

Case No.: 15cv1627-CAB-AGS
Plaintiff,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 79]
AND PROVIDING PLAINTIFF
WITH SPECIFIC INSTRUCTIONS
REGARDING FURTHER
PROCEEDINGS

COREY KALDENBACH, et al.,

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Defendant.

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REPORT AND RECOMMENDATION
On April 18, 2016, Plaintiff Gregory D. Foley filed a first amended complaint.
[Doc. No. 28.] On August 31, 2016, Defendant City of Oceanside filed a motion to
dismiss. [Doc. No. 46.] On November 16, 2016 Defendant Ronald Nevares filed a
motion to dismiss. [Doc. No. 60.] On November 17, 2016, Plaintiff filed a motion to
amend the complaint. [Doc. No. 62.] Finally, on November 28, 2016, Plaintiff filed a
motion for default judgment. [Doc. No. 66.]
On January 30, 2017, Magistrate Judge Andrew G. Schopler prepared a Report and

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Recommendation (“Report”) recommending that Plaintiff’s motion to amend be granted,

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Plaintiff’s motion for default judgment be denied, Defendant City of Oceanside’s motion

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to dismiss be denied as moot, and Defendant Nevares’ motion to dismiss be denied as

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moot. [Doc. No. 79.] The Report also ordered that any objections were to be filed within

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the time limits set forth in Federal Rule of Civil Procedure 72. [Report at 3.] To date,

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while Plaintiff has filed several other documents, no objection has been filed, nor have

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there been any requests for an extension of time in which to file an objection.
A district court’s duties concerning a magistrate judge’s report and

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recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the

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Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are

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filed, the district court is not required to review the magistrate judge’s report and

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recommendation. The Court reviews de novo those portions of the Report and

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Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may

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“accept, reject, or modify, in whole or in part, the findings or recommendations made by

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the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge

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must review the magistrate judge's findings and recommendations de novo if objection is

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made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th

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Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute

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requires a district judge to review, de novo, findings and recommendations that the

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parties themselves accept as correct.” Id. In the absence of timely objection, the Court

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“need only satisfy itself that there is no clear error on the face of the record in order to

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accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing

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Campbel v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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Here, neither party has timely filed objections to the Report. Having reviewed it,

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the Court finds that it is thorough, well-reasoned, and contains no clear error.

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Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Schopler’s Report and

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Recommendation [Doc. No. 79]; (2) GRANTS Plaintiff’s motion to amend [Doc. No.

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62]; (3) DENIES Plaintiff’s motion for default judgment [Doc. No. 66]; (4) DENIES AS

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MOOT Defendant City of Oceanside’s motion to dismiss [Doc. No. 46]; and (5)

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DENIES AS MOOT Defendant Nevares’ motion to dismiss [Doc. No. 60].

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INSTRUCTIONS TO PLAINTIFF AS TO HOW TO PROCEED

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A. Background

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On July 14, 2015, Plaintiff filed the original complaint which named the following

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defendants: City of Oceanside, Oceanside Police Department, and Does 1-12. The

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complaint was filed on a form provided for state prisoners suing under 42 U.S.C. §1983.

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The original complaint also contained factual allegations. [See Doc. No. 1.] On

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November 20, 2015, the Court granted Plaintiff’s motion to amend to substitute a named

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defendant for a Doe defendant. [Doc. No. 18.] Plaintiff was instructed that, if he wanted

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to add the named defendants, he needed to file an Amended Complaint by December 21,

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2015, that named all the defendants and contained sufficient “factual matter” to show: (1)

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how and why he believes his constitutional rights were violated; and (2) what each

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individual Defendant did to cause him injury. [Doc. No. 18 at 6-7.]

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December 21, 2015, came and went, but Plaintiff did not file an Amended

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Complaint. On February 9, 2016, however, Plaintiff filed a motion requesting the

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issuance of a summons and U.S. Marshal Service. [Doc. No. 23.] Therefore, the Court

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assumed Plaintiff wanted to stand on his original complaint and conducted its mandatory

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screening of that pleading pursuant to 28 U.S.C. §§1915e(2) and 1915A before

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determining whether U.S. Marshal service was warranted. The Court determined that

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Defendant Oceanside Police Department is not subject to suit under Section 1983 and

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therefore dismissed that defendant from the action. [Doc. No. 25.] The Court then

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ordered the U.S. Marshal to serve the complaint on the City of Oceanside, which was the

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only defendant in the action at that time. Thus, at this point, the original complaint was

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still the operative complaint, but with only one defendant.

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On April 18, 2016, Plaintiff filed a motion to amend the complaint [Doc. No. 29]

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as well as what appeared to be a proposed First Amended Complaint (“FAC”). [Doc. No.

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28]. On September 14, 2016, Magistrate Judge Ruben Brooks granted the motion to

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amend and deemed the FAC to be the operative pleading. [Doc. No. 49 at 1.] Upon

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further review, however, it is apparent that the FAC is NOT a viable complaint. First, the
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FAC appears to name the individual defendants, but it omits the City of Oceanside as a

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defendant.1 In addition, the FAC does not contain ANY factual allegations. Instead, it

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merely attaches a proposed summons for each individual defendant. It also has no

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identifiable claims and no prayer for relief. The FAC is simply not a viable complaint

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and is therefore DISMISSED without prejudice.

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Plaintiff is ADVISED that, at this point in time, there is NO operative complaint in

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this action. However, Plaintiff will be given one FINAL opportunity to file a Second

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Amended Complaint as set forth below.

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B. Recent Filings by Plaintiff

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After Judge Schopler issued the Report, Plaintiff filed several additional

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documents. [Doc. Nos. 81, 83 and 85.] One of the documents is 79 pages long, appears

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to be a motion requesting leave to file a Second Amended Complaint, and even

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references a “Second amended complaint for defendants . . . .as per ordered by the court

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in, Report and Recommendation.” [Doc. No. 83 at 1.] However, in 79 pages, there is

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nothing that resembles a Second Amended Complaint. Rather, it appears to be a

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narrative of past events as well as a discussion of the current litigation; it also provides

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occasional legal citations, and attaches some police reports from the underlying event.

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However, it does not contain the necessary components of a complaint. Therefore, the

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documents that have been submitted to date by Plaintiff do NOT constitute a viable

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Second Amended Complaint.

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The last filing by Plaintiff appears to be a motion regarding service of summons on

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the individual defendants. [Doc. No. 85.] Plaintiff is ADVISED that the Court will not

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address any issues regarding the issuance of summons or service on defendants unless

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and until Plaintiff files a viable Second Amended Complaint as set forth below.

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Unless Plaintiff intended to dismiss the City of Oceanside, by not naming the City of Oceanside in the
FAC, Plaintiff may waive his claims against the City.
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C. Instructions on How to Prepare a Second Amended Complaint

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Plaintiff is hereby granted one FINAL opportunity to file a Second Amended

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Complaint. The Court GRANTS Plaintiff forty-five (45) days from the date of this Order

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in which to file his Second Amended Complaint. Plaintiff’s pleading must be identified

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as his Second Amended Complaint, include Civil Case No. 15cv1627 CAB (AGS) in its

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caption, name the all parties he wishes to sue, and allege all the claims he wishes to

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pursue in one single, clear, and concise pleading. Plaintiff is reminded that he need not

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cite case law or make any legal arguments or attach any evidence. Instead, he should

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avoid exaggeration, and use short, plain, declarative sentences to describe, in his own

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words, what each individual person he names as a defendant did to violate his rights,

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when, where, and how they did it, and what relief he seeks. See Fed. R. Civ. P. 8(a)(2);

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Iqbal v. Ashcroft, 556 U.S. 662, 676 (2009) (noting that “[b]ecause vicarious liability is

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inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-

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official defendant, through the official’s own individual actions, has violated the

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Constitution.”).

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In order to assist Plaintiff in the preparation of the Second Amended Complaint,

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and to encourage his timely compliance, the Court also DIRECTS the Clerk of Court to

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provide Plaintiff with another copy of its form Civil Rights Complaint pursuant to 42

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U.S.C. § 1983, and strongly suggests that he use it. Plaintiff’s Second Amended

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Complaint must also comply with S.D. Cal. CivLR 8.2(a); therefore, he may attach no

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more than fifteen (15) additional pages.

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CONCLUSION

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For all the reasons discussed, the Court:

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(1) ADOPTS Magistrate Judge Schopler’s Report and Recommendation [Doc. No.

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79];

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(2) GRANTS Plaintiff’s motion to amend [Doc. No. 62];

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(3) DENIES Plaintiff’s motion for default judgment [Doc. No. 66];

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(4) DENIES AS MOOT Defendant City of Oceanside’s motion to dismiss [Doc.

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No. 46];

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(5) DENIES AS MOOT Defendant Nevares’ motion to dismiss [Doc. No. 60];

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(6) DISMISSES WITHOUT PREJUDICE the FAC [Doc. No. 28];

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(7) GRANTS Plaintiff forty-five (45) days from the date of this Order in which to

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file his Second Amended Complaint. Plaintiff’s pleading must be identified as his Second

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Amended Complaint, include Civil Case No. 15cv1627 (CAB)(AGS) in its caption, name

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the all parties he wishes to sue, and allege all the claims he wishes to pursue in one

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single, clear, and concise pleading. In order to assist him, and to encourage his timely

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compliance, the Court also DIRECTS the Clerk of Court to provide Plaintiff with

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another copy of its form Civil Rights Complaint pursuant to 42 U.S.C. § 1983, and

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strongly suggests that he use it. Plaintiff’s Second Amended Complaint must also comply

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with S.D. Cal. CivLR 8.2(a); therefore, he may attach no more than fifteen (15)

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additional pages; and,

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(8) CAUTIONS Plaintiff that, should he fail to comply with the directions set

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forth in this Order by filing a Second Amended Complaint within the 45 days provided,

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the Court will dismiss his entire civil action without prejudice based on his failure to

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prosecute and/or comply with the Court’s Orders permitting amendment. See Lira, 427

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F.3d at 1169 (“If a plaintiff does not take advantage of the opportunity to fix his

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complaint, a district court may convert the dismissal of the complaint into dismissal of

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the entire action.”); Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The

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failure of the plaintiff eventually to respond to the court’s ultimatum—either by

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amending the complaint or by indication to the court that it will not do so—is properly

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met with the sanction of a Rule 41(b) dismissal.”).

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IT IS SO ORDERED.

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Dated: March 13, 2017

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