Tran v. Kuehl et al

Filing 136

ORDER - The Court ADOPTS in part Magistrate Judge Acostas Findings and Recommendation 123 . Defendants Motions to Dismiss 56 and 61 are GRANTED, and Plaintiffs Second Amended Complaint (ECF #52) is dismissed with leave to amend. A Third A mended Complaint, if any, must be filed within 14 days of this Order. Failure to file a Third Amended Complaint will result in dismissal of this action. IT IS SO ORDERED. DATED this 26th day of April, 2019, by United States District Judge Marco A. Hernandez. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LINH THI MINH TRAN,

No. 3:16-cv-00707-AC
Plaintiff,

ORDER

v.
OFFICER DARRYN J. KUEHL, OFFICER
BENJAMIN J, TOOPS, and OFFICER
RYAN KERSEY
Defendants.

HERNÁNDEZ, District Judge:
Magistrate Judge Acosta issued a Findings and Recommendation [123] on January 22,
2019, in which he recommends that this Court grant Defendants’ Motions to Dismiss [56] [61]
and dismiss Plaintiff’s Second Amended Complaint [52] without leave to amend. The matter is
now before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure
72(b).

1 - ORDER

Plaintiff filed timely objections to the Magistrate Judge’s Findings & Recommendation.
Pl. Obj., ECF 126. When any party objects to any portion of the Magistrate Judge's Findings &
Recommendation, the district court must make a de novo determination of that portion of the
Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th
Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Judge Acosta recommends dismissing Plaintiff’s claims without leave to amend because:
(1) the bulk of Plaintiff’s claims are defeated by the Heck doctrine; (2) Plaintiff has “failed to
provide additional factual allegations in support of her claims contrary to the court’s prior order”
and “such factual allegations are not forthcoming”; and (3) Plaintiff has already amended her
complaint. F&R 19. To the extent that they are barred by Heck v. Humphrey, 512 U.S. 477
(1994), the Court agrees with Judge Acosta that Plaintiff’s claims should be dismissed without
leave to amend.1 However, to the extent that Plaintiff has otherwise failed to state a claim under
Federal Rule of Civil Procedure 12(b)(6), Plaintiff should be allowed another opportunity to
amend her complaint. The Court previously dismissed Plaintiff’s complaint under Rule 8 and
expressly declined to consider Defendants’ motions under Rule 12(b)(6). F&R 5, ECF 45.
Accordingly, this is the first time the merits of Plaintiff’s claims have been addressed by this
Court, and Plaintiff should have an opportunity to cure the defects noted in the Findings &
Recommendation.
The Court has carefully considered Plaintiff’s objections and the pertinent portions of the
record de novo, and otherwise finds no error in the Magistrate Judge’s Findings &
Recommendation.
1

This dismissal, however, is without prejudice as to a future habeas action or civil action should
she succeed on appeal. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995);
Hardaway v. County of Alameda, No. C. 08-4322 JF (PR), 2008 WL 4962695, at *2 (N.D. Cal.
Nov. 19, 2008) (dismissing claims barred by Heck “without prejudice to Plaintiff’s filing a new
complaint if the challenged conviction, sentence and/or parole denial are later invalidated”).
2 - ORDER

CONCLUSION
The Court ADOPTS in part Magistrate Judge Acosta’s Findings and Recommendation
[123]. Defendants’ Motions to Dismiss [56] [61] are GRANTED, and Plaintiff’s Second
Amended Complaint [52] is dismissed with leave to amend. A Third Amended Complaint, if
any, must be filed within 14 days of this Order. Failure to file a Third Amended Complaint will
result in dismissal of this action.
IT IS SO ORDERED.

DATED this ___________ day of __________________, 2019.

____________________________________________________
MARCO A. HERNÁNDEZ
United States District Judge

3 - ORDER