Vadim Stanley Miesegaes v. Malinda Durnen

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

VADIM STANLEY MIESEGAES, Case No. CV 20-09945 CJC (RAO) Plaintiff, v. ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND

MALINDA DURNEN, et al., RECOMMENDATION OF

UNITED STATES MAGISTRATE Defendants. JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed Plaintiff’s First Amended Complaint (“FAC”), Dkt. No. 9, the Report and Recommendation of the United States Magistrate Judge (“Report”), Dkt. No. 11, Plaintiff’s Objections, Dkt. No. 14, and all other records and files herein. Further, the Court has made a de novo determination of those portions of the Report to which objections have been made. Although the Court is not persuaded by the Objections, the Court briefly addresses one of Plaintiff’s arguments.

Plaintiff argues that official capacity claims must be dismissed without prejudice under Freeman v. Oakland Unified School District, 179 F.3d 846, 847 (9th Cir. 1999). In Freeman, the Ninth Circuit affirmed the district court’s holding that the Eleventh Amendment barred a claim against a school district, but ordered the district court to modify its dismissal of the claim to be without prejudice as it was a dismissal for lack of jurisdiction. /d. Here, Plaintiff's official capacity claims are being dismissed for failure to state a claim and not for lack of jurisdiction. Accordingly, Freeman is inapplicable and Plaintiff's Objections are overruled. The Court hereby accepts and adopts the Magistrate Judge’s findings, conclusions, and recommendations. IT IS ORDERED that this action is dismissed with prejudice and without leave to amend.

|| | DATED: March 26, 2021 Ko fe “ □ (OF □ HON. CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE