Shannon Kay Lopez v. Joan Frances Burgess ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHANNON KAY LOPEZ, Case No. 5:21-cv-00920-JAK (SHK) 12 Plaintiff, 13 ORDER ACCEPTING FINDINGS 14 AND RECOMMENDATION OF 15 v. UNITED STATES MAGISTRATE JUDGE 16 JOAN FRANCES BURGESS, et al., 17 Defendants. 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint; Joan 20 Frances Burgess’ (“Defendant Burgess”) Motions to Dismiss (“MTD”) (“Burgess 21 MTD”); the MTD filed by Deputy District Attorney Michael A. Hestrin (“DA 22 Hestrin”), Deputy District Attorney Sandra J. Kim (“DA Kim”), Deputy District 23 Attorney Carlos Aguilar (“DA Aguilar”), Deputy Sheriff Del Real (“Defendant Del 24 Real”), Deputy Sheriff Beeman (“Defendant Beeman”), Sergeant Grmusha 25 (“Defendant Grmusha”) Sergeant De Loss (“Defendant De Loss”), Deputy Sheriff 26 Bechtold (“Defendant Bechtold”), and Deputy Sheriff Ducoeur (“Defendant 27 Ducoeur”) (collectively “Non-Commissioner Defendants” or “NC Defendants”) 1 Recommendation (“R&R”) of the United States Magistrate Judge. Electronic Case 2 Filing Number (“ECF No.”) 1, Compl.; ECF No. 29, Burgess MTD; ECF No. 37, 3 NC Defendants’ MTD; ECF No. 40, R&R. No objections have been filed. The 4 Court accepts the findings and recommendation of the Magistrate Judge. 5 IT IS THEREFORE ORDERED that: (1) the Burgess MTD [ECF No. 29] is 6 GRANTED; (2) the NC Defendants’ MTD [ECF No. 37] is GRANTED; (3) 7 Plaintiff’s claims against Defendant Burgess, DA Hestrin, DA Kim, and DA 8 Aguilar are DISMISSED with prejudice; and (4) Plaintiff’s claims against all other 9 Defendants are DISMISSED without prejudice and with leave to amend. 10 IT IS FURTHER ORDERED that, if Plaintiff would like to continue to 11 prosecute this action, Plaintiff shall file a First Amended Complaint (“FAC”) 12 within 21 days of the issuance of this Order. On the first page of any FAC, 13 Plaintiff shall clearly designate that the document is the “First Amended 14 Complaint,” include the docket number assigned to this case, and write the 15 amended pleading on this Court’s CV-066 form, which the Clerk of Court is 16 directed to mail to Plaintiff along with this Order. 17 In the body of the FAC, Plaintiff shall include all claims that Plaintiff 18 would like to pursue, even if Plaintiff previously stated them in the original 19 Complaint. If Plaintiff does not raise a claim in the FAC, the Court will consider 20 it waived. Plaintiff cannot refer to the original Complaint or any other pleading, 21 attachment, or document to state a claim in the FAC. Plaintiff cannot include in 22 the body of the FAC any new defendants or new allegations that are not reasonably 23 related to the claims asserted in the original Complaint, without leave of the Court. 24 For the claims that the Court found deficient in the R&R as accepted in this 25 Order, in the FAC Plaintiff shall fix the deficiencies consistent with the Court’s 26 Order if Plaintiff wishes to continue litigating those claims. If Plaintiff files a FAC 27 restating deficient claims, the Court may not allow Plaintiff another opportunity to 1 | claim(s) that the Court did not find deficient, Plaintiff must still re-plead them in 2 | the FAC in their entirety if Plaintiff seeks to continue litigating those claim(s). 3 Plaintiff is cautioned that if Plaintiff does not timely file a FAC, this 4 | action will be dismissed with or without prejudice for failure to state a claim, 5 | failure to prosecute, and/or failure to obey Court orders under Federal Rule 6 | of Civil Procedure 41(b). Dismissal “with prejudice” means that Plaintiff would 7 | not be able to bring this action in federal court again, while “without prejudice” 8 | means Plaintiff could re-file this action in this Court. If Plaintiff believes more 9 | time is necessary to file a FAC, Plaintiff shall request an extension of time from 10 | the Court before the 21-day period mentioned above expires. However, an 11 | extension will be granted only if Plaintiff demonstrates good cause for needing 12 | more time. 13 Finally, Plaintiff may voluntarily dismiss the action without prejudice, 14 | pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is 15 | directed to mail Plaintiff a blank Notice of Dismissal Form. 16 17 | Dated: December 1, 2021 ( | An / \ 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 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.