Aaron Raiser v. City of Murrieta

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA AARON RAISER, Case No. EDCV 19-183-DSF (KK) 11 Plaintiff, 12 v. ORDER ACCEPTING AMENDED FINDINGS AND CITY OF MURRIETA, ET AL., RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 14 Defendant(s).

17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, the relevant records on file, and the Amended Report and Recommendation of the United States Magistrate Judge. The Court has engaged in de novo review of those portions of the Amended Report to which Plaintiff has objected. The Court accepts the findings and recommendation of the Magistrate Judge.

23 IT IS THEREFORE ORDERED that (1) Defendants’ Motion to Dismiss is GRANTED; (2) Claims Two, Three, Five, Eight, Nine, Ten, Eleven, and Twelve in the First Amended Complaint are DISMISSED with prejudice and without leave to amend; (3) all other claims in the First Amended Complaint are DISMISSED with leave to amend; and (4) Plaintiff’s Motion for Partial Summary Judgmnet is DENIED 1 IT IS FURTHER ORDERED THAT within twenty-one (21) days of the service date of this Order, Plaintiff choose one of the following options: 3 1. Plaintiff may file a Second Amended Complaint to attempt to cure the deficiencies discussed in the Amended Report and Recommendation regarding claims that have not been dismissed with prejudice in this Order. The Clerk of Court is directed to mail Plaintiff a blank Central District civil rights complaint form to use for filing the Second Amended Complaint, which the Court encourages Plaintiff to use.

8 If Plaintiff chooses to file a Second Amended Complaint, he must clearly designate on the face of the document that it is the “Second Amended Complaint,” it must bear the docket number assigned to this case, and it must be retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not include new defendants or allegations that are not reasonably related to the claims asserted in the First Amended Complaint. In addition, the Second Amended Complaint must be complete without reference to the First Amended Complaint, Complaint, or any other pleading, attachment, or document.

16 An amended complaint supersedes the preceding complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat all preceding complaints as nonexistent. Id. Any claim raised in a preceding complaint and not dismissed with prejudice is waived if it is not raised again in the Second Amended Complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012).

22 The Court advises Plaintiff that it generally will not be well-disposed toward another dismissal with leave to amend if Plaintiff files a Second Amended Complaint that continues to include claims on which relief cannot be granted. “[A] district court’s discretion over amendments is especially broad ‘where the court has already given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 1 | 1261. Thus, if Plaintiff files a Second Amended Complaint with claims on | which relief cannot be granted, the Second Amended Complaint will be | dismissed without leave to amend and with prejudice.

4 2. Alternatively, Plaintiff may voluntarily dismiss the action without | prejudice, pursuant to Federal Rule of Civil Procedure 41 (a). ‘The Clerk of Court is | directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court | encourages Plaintiff to use if he chooses to voluntarily dismiss the action.

8 Plaintiff is explicitly cautioned that failure to timely respond to this | Order will result in this action being dismissed for failure to state a claim, or | for failure to prosecute and/or obey Court orders pursuant to Federal Rule of | Civil Procedure 41(b).

13 IT IS SO ORDERED.

14 | DATED: July 13, 2020 / ) 15 Honorable Dale S. Fischer ———— 16 UNITED STATES DISTRICT JUDGE

FULL NAME COMMITTEDNAME(ifdifferent) FULL ADDRESS INCLUDING NAME OF INSTITUTION, O—~C~SOSOSOSS PRISON NUMBER (ifapplicabley = □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER To be supplied by the Clerk PLAINTIFF, v. CIVIL RIGHTS COMPLAINT PURSUANT TO (Check one) L] 42 U.S.C. § 1983 DEFENDANT(S). | > Bivens v. Six Unknown Agents 403 U.S. 388 (1971) PREVIOUS LAWSUITS 1. Have you brought any other lawsuits in a federal court while a prisoner: Yes LI No 2. your answer to “1.” is yes, how many?

Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an attached piece of paper using the same outline.)

a. Parties to this previous lawsuit: Plaintiff Defendants b. Court c. Docket or case number d. Name of judge to whom case was assigned e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it appealed? Is it still pending?) f. Issues raised: g. Approximate date of filing lawsuit: h. Approximate date of disposition B. EXHAUSTION OF ADMINISTRATIVE REMEDIES 1. Is there a grievance procedure available at the institution where the events relating to your current complaint occurred? L) Yes LINo 2. Have you filed a grievance concerning the facts relating to your current complaint? LI Yes LI No If your answer is no, explain why not 3. grievance procedure completed? Yes LI No If your answer is no, explain why not 4. Please attach copies of papers related to the grievance procedure.

C. JURISDICTION This complaint alleges that the civil rights of plaintiff (print plaintiff's name) who presently resides at (mai ng address Or place of confinement) were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at (institution/city where violation occurred) on (date or dates) , (Clam 1) (Clam ID (Claim IID NOTE: — You need not name more than one defendant or allege more than one claim. If you are naming more than five (5) defendants, make a copy of this page to provide the information for additional defendants.

1. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, 1f any) The defendant is sued in his/her (Check one or both): LJ individual 1 official capacity.

Explain how this defendant was acting under color of law: 2. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): LJ individual 1 official capacity.

Explain how this defendant was acting under color of law: 3. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): LJ individual 1 official capacity.

Explain how this defendant was acting under color of law: 4. Defendant resides or works at (full name of first defendant) (fulladdress of firstdefendant) □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ = The defendant is sued in his/her (Check one or both): LJ individual 1 official capacity.

Explain how this defendant was acting under color of law: 5. Defendant resides or works at (full name of first defendant) (fulladdress of firstdefendant) (defendant's position andfitle,ifany) = The defendant is sued in his/her (Check one or both): LJ individual 1 official capacity.

Explain how this defendant was acting under color of law: D. CLAIMS* CLAIM I The following civil right has been violated: Supporting Facts: Include all facts you consider important. State the facts clearly, in your own words, and without citing legal authority or argument. Be certain you describe, in separately numbered paragraphs, exactly what each DEFENDANT (by name) did to violate your right.

there is more than one claim, describe the additional claim(s) on another attached piece of paper using the same outline.

E. REQUEST FOR RELIEF I believe that I am entitled to the following specific relief: (Date) (Signature of Plaintiff) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER Plaintiff(s), Vv.

NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL Defendant(s). PROCEDURE 41(a) or (c) PLEASE TAKE NOTICE: (Check one) L] This action is dismissed by the Plaintiff(s) in its entirety.

L] The Counterclaim brought by Claimant(s) is dismissed by Claimant(s) in its entirety.

L] The Cross-Claim brought by Claimants(s) is dismissed by the Claimant(s) in its entirety.

L] The Third-party Claim brought by Claimant(s) is dismissed by the Claimant(s) in its entirety.

ONLY Defendant(s) is/are dismissed from (check one) Complaint, LJ Counterclaim, LJ Cross-claim, ) Third-Party Claim brought by .

The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).

Date Signature of Attorney/Party F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.

F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive pleading or prior to the beginning of trial.