Aaron Raiser v. City of Temecula ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 AARON RAISER, Case No. EDCV 19-1465-DSF (KK) 11 Plaintiff, 12 v. ORDER DISMISSING THIRD AMENDED COMPLAINT WITH 13 CITY OF TEMECULA, ET AL., LEAVE TO AMEND 14 Defendant(s). 15 16 17 I. 18 INTRODUCTION 19 Plaintiff Aaron Raiser (“Raiser”), proceeding pro se and in forma pauperis, filed 20 a Third Amended Complaint (“TAC”) pursuant to 42 U.S.C. § 1983 (“Section 1983”) 21 alleging various violations of his Fourth, Fifth, Eighth and Fourteenth Amendment 22 rights. Defendants County of Riverside, Wade, Carpenter, Hollingsworth, Deforest, 23 Wood, Gardner, Aguire, and Rodriguez filed a Motion to Dismiss Portions of the 24 Third Amended Complaint. For the reasons discussed below, the Court dismisses the 25 TAC with leave to amend and denies the Motion to Dismiss Portions of the Third 26 Amended Complaint as MOOT. 27 /// 1 II. 2 PROCEDURAL HISTORY 3 On August 7, 2019, Raiser initiated the instant action by filing a Complaint 4 alleging various Section 1983 claims against defendants City of Temecula, the County 5 of Riverside, several individuals, “All Judges in the Western and Eastern Divisions of 6 This Court,” and “All Staff Who Are Not Judges in All Divisions of This Court.” 7 Dkt. 1. 8 On November 4, 2019, following the Court’s rulings on Raiser’s various 9 motions to recuse judges and motions for reconsideration, see dkts. 8, 15, and 36, 10 Raiser filed a motion for leave to file an amended complaint and attached a First 11 Amended Complaint to the motion. Dkt. 23. 12 On April 8, 2020, the Court issued an order permitting Raiser to amend the 13 Complaint, but prohibited Raiser from including Central District judges and court 14 staff as defendants. Dkt. 30. 15 On May 26, 2020, Raiser filed a Second Amended Complaint (“SAC”) against 16 defendants City of Temecula, County of Riverside, Jon Wade, Kevin Carpenter, 17 Leonard Danny Hollingsworth, Lance Deforest, Lyndon Ray Wood, Deputy 18 Rodriguez, and Does 1-25 in their individual and official capacities. Dkt. 38. 19 On July 15, 2020, the Court ordered service of the SAC on the named 20 defendants.1 Dkts. 39, 40. 21 On August 3, 2020, Raiser identified Salvador Aquire Jr.2 as “Doe 1” and 22 Matthew Gardner as “Doe 2.” Dkt. 43. On August 4, 2020 the Court ordered service 23 of the SAC on defendants Aguire and Gardner. Dkts. 47, 48. 24 25 1 On July 14, 2020, the Court issued an order notifying Raiser that if he wished to 26 proceed with his claims against the Doe defendants, he must provide to the Court in writing the names of the Doe defendants within thirty (30) days in order for the Court 27 to issue an order regarding service for the claims against the Doe defendants. Dkt. 39. 1 On September 2, 2020, defendants County of Riverside, Wade, Carpenter, 2 Hollingsworth, Deforest, Wood, Gardner, and Aguire filed a Motion to Dismiss 3 Portions of the SAC. Dkt. 51. On September 3, 2020, the Court granted the parties’ 4 stipulation to dismiss all claims against individual defendants in their official capacities 5 without prejudice. Dkt. 57. 6 On September 13, 2020, prior to the Court’s ruling on the Motion to Dismiss 7 Portions of the SAC, Raiser filed the operative TAC pursuant to Federal Rule of Civil 8 Procedure 15 (a)(1)(B), setting forth nineteen causes of action against defendants City 9 of Temecula, County of Riverside, Wade, Rodriguez, Wood, Carpenter, 10 Hollingsworth, Deforest, Aguire, Gardner, and Does 3-25 in their individual and 11 official capacities (“Defendants”). Dkt. 58. 12 On September 14, 2020, the Court issued an Order deeming the Motion to 13 Dismiss Portions of the SAC moot and ordered Defendants to file a response to the 14 TAC. Dkt. 59. 15 On September 21, 2020, defendants County of Riverside, Wade, Carpenter, 16 Hollingsworth, Deforest, Wood, Gardner, Aguire and Rodriguez3 (“Moving 17 Defendants”) filed a Motion to Dismiss Portions of the TAC.4 Dkt. 62. Moving 18 Defendants simultaneously filed a Request for Judicial Notice requesting the Court 19 take judicial notice of certain docket entries in another case filed in this Court, Raiser 20 v. City of Temecula, 5:17-cv-217 RGK-RAO (“Raiser I”). Dkt. 63.5 The parties also 21 filed a stipulation clarifying Raiser is not suing any individual defendants in their 22 official capacity, and “all allegations against the individual defendants in their official 23 capacities are dismissed without prejudice.” Dkt. 64. 24 25 3 On October 14, 2020, defendant Deputy Arturo Rodriguez filed a Joinder in the 26 Motion to Dismiss Portions of the TAC. Dkt. 74. 27 4 Because the Court dismisses the TAC with leave to amend, Moving Defendants’ Motion to Dismiss Portions of the TAC is denied as MOOT. 1 On October 5, 2020, Raiser filed an Opposition to the Motion to Dismiss 2 Portions of the TAC. Dkt. 71. On October 6, 2020, Moving Defendants filed a 3 Reply. Dkt. 72. On October 7, 2020, Raiser submitted a “Notice of Errata” stating 4 all references in the TAC to defendant Carpenter should be to “Chris Ibrahim.” Dkt. 5 73. On October 19, 2020, Raiser filed a Sur-Reply. Dkt. 75-1. The matter thus 6 stands submitted. 7 III. 8 ALLEGATIONS IN THE TAC 9 The Court herein summarizes Raiser’s allegations in the TAC as follows: 10 On or about December 12, 2015, Raiser’s car was towed due to an expired 11 registration. Dkt. 58 at 25–26. Raiser alleges it was raining and approximately 42 12 degrees and Raiser had no coat and nowhere to sleep. Id. Raiser asked “Doe 3”, an 13 officer, to call the towing company so he could retrieve his coat and sleeping bag 14 from the car, which contained all his belongings, but “the officer claimed he phoned 15 the tow company and the tow company refused to allow Plaintiff any chance to get 16 his belongings.” Id. Raiser alleges that in approximately March 2018 during discovery 17 in the “Temecula II case,”6 he learned that the officer “faked” the phone call to the 18 towing company and falsely stated the towing company refused to allow Raiser to get 19 his belongings. Id. (Claim Nine). 20 On or about the night of February 19, 2017, Raiser was sitting in his car on 21 “Commerce Centre Bl.” which is “across the street from the CHP office” when 22 defendant Carpenter, a Riverside County deputy, detained Raiser. Id. at 27–28. 23 Defendant Carpenter told Raiser he was being detained because “several business 24 alarms had gone off in the immediate area.” Id. at 27. Raiser alleges he learned 25 26 27 6 “Temecula II” appears to be a reference to Raiser v. City of Temecula, 5:17-cv 217 1 during discovery in August 2017 in the “Temecula II case” that defendant Carpenter 2 was lying and no alarm had gone off. Id. (Claim Eleven). 3 On or about April 24, 2017, Raiser was sitting in his car “on Del Rio in 4 Temecula” when defendant Wade, a Temecula police officer, “snuck up” on Raiser in 5 an unmarked car and knocked on Raiser’s rear window. Id. at 28. Raiser was 6 frightened and attempted to drive off “a few feet” and was told to stop and that he 7 could not drive away when a Temecula police officer pulls up behind him. Id. 8 Defendant Wade informed Raiser “someone had called the police on him.” Id. 9 Raiser alleges he learned during discovery in the Temecula II case in August 2017 that 10 no one had called the police on him. Id. (Claim Twelve). 11 On September 7, 2017, Raiser was sitting in his car “on Madison near McCabe 12 Ct. in Temecula.” Id. at 19. Defendant Gardner,7 a Riverside County sheriff’s 13 deputy, pulled up behind Raiser, who began to slowly drive away. Id. Defendant 14 Gardner then activated his lights and pulled Raiser over, and after “about 8 minutes,” 15 permitted Raiser to leave. Id. (Claim Two). 16 On January 2, 2018, around 2 p.m., Raiser was sitting in his car “off of Borel 17 near Winchester Drive” when defendant Deforest, who was training another deputy 18 (non-defendant deputy Velazquez) how to “conduct a random occupied vehicle 19 check—the unconstitutional way,” told Raiser to stop when Raiser attempted to 20 slowly drive away. Id. Raiser gave defendant Deforest his name, date of birth, and 21 was permitted to leave after about four minutes. Id. (Claim Three). 22 On or about April 18, 2018, Raiser was sitting in his car “off of Borel near 23 Winchester Drive” when a “Riverside [C]ounty deputy” detained Raiser for about two 24 minutes despite having no “articulable suspicion Raiser was breaking any laws.” Id. at 25 21. (Claim Four). 26 27 1 On April 28, 2018, Raiser was sitting in his car “off of Borel near Winchester 2 Drive” when he was detained by “a Riverside [C]ounty deputy (Doe 1) for about 1 3 minute” despite the fact that Raiser was not suspected of breaking any laws. Id. at 4 21–22. (Claim Five). 5 On or about April 28, 2018, Raiser was sitting in his car “off of Borel near 6 Winchester Drive” when he was detained by defendant Hollingsworth, who walked 7 up from behind Raiser’s car with his gun drawn, pointing downward. Id. at 22. 8 Raiser asked if he could leave, but was denied permission to leave. Id. at 22–23. 9 Defendant Hollingsworth then requested Raiser provide his driver’s license. Id. After 10 about seven minutes, Raiser was permitted to leave. Id. (Claim Six). 11 On or about August 21, 2018, at approximately 9:00 a.m., Raiser was sitting in 12 his car “on McCabe Ct. in Temecula” when “[defendant] Rodriguez (Doe 2)” pulled 13 up behind Raiser, who began to slowly drive away. Id. at 23. Defendant Rodriguez 14 put his police lights on, stopped Raiser, and asked for his driver’s license. Id. Raiser 15 alleges he uttered something like “geez” under his breath, which caused defendant 16 Rodriguez to order Raiser out of the car, conduct a pat-down, and search Raiser’s 17 pockets for weapons. Id. at 23–24. Defendant Rodriguez then handcuffed Raiser for 18 over thirty minutes, “put [Raiser] in the back of the patrol car,” and questioned Raiser 19 for approximately fifteen minutes in the patrol car. Id. Raiser was then told he was 20 permitted to leave, but could not leave for an additional fifteen minutes while 21 defendant Rodriguez waited for the keys to the handcuffs to arrive. Id. Raiser claims 22 he was cooperative and posed no threat, and that his hands swelled up for several 23 hours after the encounter. Id. at 24–25. (Claims Seven and Eight). 24 On or about June 2019, Raiser was sitting in his car “between Borel and 25 Winchester on the top of a small hill overlooking the airport” in an area frequented by 26 hikers, SUVs and trucks. Id. at 37–38. Three deputies walked up behind Raiser’s car 27 and “Doe 17” ordered Raiser out of his car with his gun drawn. Id. After conducting 1 On or about August 21, 2019, after shopping at Sprouts Market, Raiser was 2 parked in a strip mall parking lot near Sprouts Market on Temecula Parkway around 3 6:30 p.m. Id. at 18. After Raiser was parked for approximately 15 to 20 minutes, 4 defendant Aguire,8 a Riverside County sheriff’s deputy, pulled up next to Raiser and 5 got out of his vehicle. Id. Raiser began to drive away but was ordered by defendant 6 Aguire to stop, despite the fact Raiser was not breaking any laws. Id. (Claim One). 7 On August 25, 2019 at approximately 9:00 a.m., Raiser was sitting in his car 8 outside of Temecula when defendant Wood “(Doe 5)”, a Riverside County deputy, 9 pulled up behind Raiser, blocking his exit, and then walked up to Raiser and told him 10 to turn off his motor. Id. at 29. Defendant Wood asked for Raiser’s license and ran a 11 background check and asked Raiser if he was on probation or parole. Id. Raiser 12 alleges defendant Wood “said he was acting in conformance with department training 13 and policy.” Id. at 30. “About 5 minutes into the stop” defendant Wood told Raiser 14 he was not being detained, returned his license, and left. Id. (Claim Thirteen). 15 On or about September 17, 2019 Raiser was sitting in his car “near the corner 16 of Winchester and Borel” when “Doe 15,” “a Riverside County deputy and Temecula 17 police officer,” detained Raiser “without basis” and the deputy “fabricated” that 18 Raiser was on private property. Id. at 36–37. (Claim Seventeen). 19 Additionally, Raiser alleges he has been stopped and detained by Riverside 20 County sheriffs deputies “over 50 times”9 without basis; has spoken with two 21 homeless people who were detained and ID’d by Riverside County sheriffs “on 23 22 occasions in the past 2 years”; has spoken with three other homeless people who 23 stated they and others had been detained “in 2015”; has spoken with “a homeless girl” 24 in Temecula who said “she had been unlawfully detained by the Temecula police 20 25 times in the last 6 months”; had spoken with another homeless person who said he 26 8 Raiser alleges defendant Aguire is “Doe 1” and “remains a Doe defendant pending 27 discovery.” Dkt. 58 at 18. 1 had been “detained many times unlawfully by the Temecula police”; and has 2 witnessed other detainments in June 2018. Id. at 30–32. Raiser alleges “city leaders” 3 promote these policies, and new deputies are trained how to carry them out. Id. at 32. 4 He further alleges Defendants are on notice since he has “filed 4 prior lawsuits against 5 Defendants in an effort to get them to change their ways, properly train their deputies, 6 supervise them and discipline them.” Id. at 33. Accordingly, Raiser alleges the City of 7 Temecula and County of Riverside have “a custom, policy and/or pattern of 8 unlawfully detaining citizens to ID them.” Id. at 31, 35. 9 Finally, while not included in any specific cause of action, Raiser sets forth 10 general allegations that he was unlawfully stopped by the City of Temecula police 11 multiple times in 2012, id. at 3; was stopped “in or near” the city of Temecula by 12 Riverside County sheriffs multiple times from 2012 to 2014, which provided the basis 13 for “case 14-CV-2363 (Temecula I)”, id. at 3–7; was stopped “in or near” the city of 14 Lake Elsinore by Riverside County sheriffs multiple times from 2011 to 2012, which 15 provided the basis for “case 12-CV-604 (Lake Elsinore I)” and multiple times from 16 2012 to 2015 which provided the basis for “case 13-CV-1394 (Lake Elsinore II)”, id. 17 at 7–11; and was stopped “in or near” the city of Temecula by Riverside County 18 sheriffs multiple times from 2015 to 2017, which provided the basis for “Temecula 19 II,” id. at 12–18. 20 Based on these allegations, Raiser sets forth the following claims pursuant to 21 Section 1983: 22 • Claims One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Eleven, 23 Twelve, Thirteen, Seventeen, and Eighteen allege violation of Raiser’s 24 Fourth and Fourteenth Amendment rights against defendants City of 25 Temecula, County of Riverside, Aguire, Gardner, Deforest, Hollingsworth, 26 Rodriguez, Wade, Wood, Carpenter, and various DOE defendants; 27 • Claim Eight alleges a violation of the Eighth Amendment against 1 • Claim Nine alleges violations of the Fourth and Fourteenth Amendments, 2 “deliberate indifference” in violation of the Eighth Amendment, and 3 “unlawful taking” in violation of the Fifth Amendment, against defendants 4 City of Temecula, County of Riverside, and “Doe 3”; 5 • Claim Ten seeks a “declaratory judgment” against all Defendants that 6 Raiser’s “civil rights were violated in causes of action 1-9, 11-18”; 7 • Claims Fourteen, Fifteen, and Sixteen are claims against the City of 8 Temecula10 and County of Riverside alleging liability based on Monell v. 9 Department of Social Services, 436 U.S. 658 (1978) (“Monell”) for 1) 10 maintaining and “ratifying” a policy of unlawfully detaining citizens to find 11 out their identify; unlawfully detaining citizens sitting in their cars to find out 12 their identify; unlawfully detaining homeless citizens to find out their 13 identify; and 2) failing to train deputies to prevent “unlawfully detaining 14 citizens, including Plaintiff, to find out their identify; unlawfully detaining 15 citizens sitting in their cars to find out their identify; unlawfully detaining 16 homeless citizens to find out their identity”; and 17 • Claim Nineteen alleges unlawful policies of detainment and “deliberate 18 indifference” against County of Riverside. 19 Raiser seeks monetary damages on all claims except Claim Ten, which requests 20 a declaratory judgment. Id. at 27. 21 IV. 22 STANDARD OF REVIEW 23 Where, as here, a plaintiff is proceeding in forma pauperis, a court must screen 24 the complaint under 28 U.S.C. § 1915 and is required to dismiss the case at any time if 25 26 10 The Court notes Claims Fourteen, Fifteen and Sixteen are against both the City of Temecula and Riverside County, but the body of the claims refer to city leaders and 27 the mayor of Temecula, as well as deputies. Dkt. 58 at 31, 35. In any amended 1 it concludes the action is frivolous or malicious, fails to state a claim on which relief 2 may be granted, or seeks monetary relief against a defendant who is immune from 3 such relief. 28 U.S.C. § 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 4 (9th Cir. 1998). 5 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 6 “short and plain statement of the claim showing that the pleader is entitled to relief.” 7 FED. R. CIV. P. 8(a)(2). In determining whether a complaint fails to state a claim for 8 screening purposes, a court applies the same pleading standard as it would when 9 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 10 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 11 A complaint may be dismissed for failure to state a claim “where there is no 12 cognizable legal theory or an absence of sufficient facts alleged to support a 13 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 14 considering whether a complaint states a claim, a court must accept as true all of the 15 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892–93 (9th Cir. 16 2011). However, the court need not accept as true “allegations that are merely 17 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 18 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 19 need not include detailed factual allegations, it “must contain sufficient factual matter, 20 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 21 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 22 678 (2009)). A claim is facially plausible when it “allows the court to draw the 23 reasonable inference that the defendant is liable for the misconduct alleged.” Id. The 24 complaint “must contain sufficient allegations of underlying facts to give fair notice 25 and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 26 1202, 1216 (9th Cir. 2011). 27 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 1 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889–90 (9th Cir. 2008). 2 However, liberal construction should only be afforded to “a plaintiff’s factual 3 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), and a court need not 4 accept as true “unreasonable inferences or assume the truth of legal conclusions cast 5 in the form of factual allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 6 2003). 7 If a court finds the complaint should be dismissed for failure to state a claim, 8 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 9 203 F.3d 1122, 1126–30 (9th Cir. 2000). Leave to amend should be granted if it 10 appears possible the defects in the complaint could be corrected, especially if the 11 plaintiff is pro se. Id. at 1130–31; see also Cato v. United States, 70 F.3d 1103, 1106 12 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 13 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 14 F.3d at 1107–11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 15 V. 16 DISCUSSION 17 A. RES JUDICATA 18 1. Applicable Law 19 “Res judicata, also known as claim preclusion, bars litigation in a subsequent 20 action of any claims that were raised or could have been raised in the prior action.” 21 Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quoting 22 W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)). Res judicata 23 bars an action when there is: (1) “identity or privity between parties”; (2) “an identity 24 of claims”; and (3) “a final judgment on the merits.” Stewart v. U.S. Bancorp, 297 25 F.3d 953, 956 (9th Cir. 2002). The U.S. Supreme Court has made clear that there is 26 no “principle of law or equity which sanctions the rejection by a federal court of the 27 salutary principle of res judicata.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 1 394, 401 (1981). “The doctrine of res judicata serves vital public interests beyond any 2 individual judge’s ad hoc determination of the equities in a particular case.” Id. 3 “[I]f a court is on notice that it has previously decided the issue presented, the 4 court may dismiss the action sua sponte, even though the defense [of res judicata] has 5 not been raised. This result is fully consistent with the policies underlying res judicata: 6 it is not based solely on the defendant’s interest in avoiding the burdens of twice 7 defending a suit, but is also based on the avoidance of unnecessary judicial waste.” 8 Arizona v. California, 530 U.S. 392, 412 (2000), supplemented, 531 U.S. 1 (citations 9 omitted). The parties, however, should have an opportunity to be heard prior to a 10 court’s sua sponte dismissal based on res judicata. See Headwaters Inc. v. U.S. Forest 11 Serv., 399 F.3d 1047, 1055 (9th Cir. 2005); see also Cramer v. Dickenson, No. 1:08- 12 CV-00375-AWI, 2013 WL 127639, at *2 (E.D. Cal. Jan. 9, 2013), report and 13 recommendation adopted sub nom. Cramer v. Dickinson, No. 1:08-CV-00375-AWI, 14 2013 WL 1192402 (E.D. Cal. Mar. 21, 2013), aff’d, 586 F. App’x 381 (9th Cir. 2014). 15 2. Additional Factual Background Regarding Raiser v. City of 16 Temecula, 5:17-cv 217 RGK (RAO) (“Raiser I”) 17 On February 6, 2017, Raiser initiated the “Raiser I” action in this Court in 18 Raiser v. City of Temecula, 5:17-cv 217 RGK (RAO). On May 31, 2017, Raiser filed a 19 first amended complaint setting forth forth twenty-six claims against defendants City 20 of Temecula, County of Riverside, State of California, Does 1-25, and five individual 21 officers, alleging violations of Raiser’s Fourth, Fifth, Eighth and Fourteenth 22 Amendment rights. Raiser I, dkt. 12, FAC. The claims arose out of various 23 encounters with law enforcement from February 2015 through April 1, 2017. Id. at 24 12–36. 25 On November 4, 2019, the parties in Raiser I entered into a stipulation 26 dismissing a total of eight claims from the first amended complaint, agreeing to 27 proceed to a jury trial on twelve claims, and agreeing to a court determination on four 1 On December 10, 2019, “Phase I (Section 1983 claims against individual 2 defendants)” of trial began. See Raiser I, dkt. 368, Order re Equitable Claims. 3 Evidence was presented to the jury, and at the end of Raiser’s case, defendants filed a 4 Rule 50 motion seeking judgment as a matter of law. Id. The Court deferred ruling 5 on defendants’ Rule 50 motion. Id. On December 11, 2019, the jury deliberated and 6 returned a verdict in favor of Raiser on a single Section 1983 claim against defendant 7 Deputy Butts. Id. 8 On December 11, 2019, “Phase II (Monell claim and damages)” of trial 9 commenced. Id. After the parties rested, the Court heard Raiser’s and the 10 defendants’ Rule 50 motions. Id. The Court denied Raiser’s motion and granted 11 Defendants’ motion as to Monell liability and damages. Id. With respect to 12 Defendants’ motion, the Court specifically found insufficient evidence to support 13 either Monell liability or damages. Id. At the conclusion of the jury trial, the Court 14 directed the parties to brief the status of Raiser’s four remaining equitable claims: 15 Claims 16, 20, 24 and 26. Id. 16 On February 19, 2020, the Court issued a ruling on Raiser’s four equitable 17 claims and found in favor of defendants. Dkt. 368. Specifically, with respect to 18 claims 20, 24 and 26 against Riverside County and City of Temecula, the Court found 19 “based on the evidence produced, the Court has already found insufficient evidence 20 of any unconstitutional practice or policy on the part of the County or City. 21 Moreover, Raiser has not presented any evidence that he was detained just to check 22 his ID or harass him, simply for sitting in his car while homeless, or based solely on a 23 citizen complaint.” Id. at 2. 24 On March 23, 2020, the Court entered Judgment in favor Raiser against 25 defendant Deputy Richard Butts in the sum of $1, and judgment in favor of 26 defendants County of Riverside, City of Temecula, Deputy Brian Nelson, Deputy 27 Jared Melback, and Deputy Steven Waroff on all other claims. Raiser I, dkt. 390, 1 On April 22, 2020, Raiser appealed the judgment in Temecula I, which is 2 currently pending before the Ninth Circuit. Raiser I, dkt. 398, Notice of Appeal. 3 3. Claim Eleven Is Not Barred by Res Judicata 4 In Claim Eleven of the TAC, Raiser alleges that “on or about” the night of 5 February 19, 2017, he was sitting in his car on Commerce Centre Bl. “across the street 6 from the CHP office” when defendant Carpenter, a Riverside county deputy, detained 7 Raiser. Dkt. 58 at 27–28. Defendant Carpenter told Raiser the reason he was being 8 detained was “several business alarms had gone off in the immediate area.” Id. at 27. 9 Raiser has subsequently filed a “Notice of Errata” indicating all references in the TAC 10 to defendant Carpenter should be to “Chris Ibrahim.” Dkt. 73. 11 In Raiser I, Raiser’s claim 22 of the first amended complaint alleged that “on or 12 about” February 16, 2017, Raiser was “sitting in his car on Commerce Centre Bl.” 13 when a deputy detained him because “a business alarm had gone off in the area.” 14 Raiser I, dkt. 12 at 21–32. Claim 22 appears to have proceeded to jury trial and the 15 jury reached a verdict finding Raiser’s constitutional rights were not violated by “a 16 deputy sheriff” on February 16, 2017. Raiser I, dkt. 264, Stipulation; Raiser I, dkt. 17 390, Judgment. 18 Here, the Court does not find all three criteria for res judicata are satisfied with 19 regard to Claim Eleven of the TAC. While Claim 22 in Raiser I appears to have been 20 subject to “a final judgment on the merits” because it was tried before a jury, see 21 Raiser I, dkt. 390, it is not clear claim 22 and the instant Claim Eleven of the TAC are 22 identical. First, Claim Eleven of the TAC alleges Raiser was stopped by a deputy on 23 or about February 19, 2017, whereas claim 22 of the Raiser I action alleges a stop 24 occurred on February 16, 2017. While the two incidents appear factually similar and 25 close in date, the Court cannot conclude the claims refer to the same incident.11 26 Second, in light of Raiser’s Notice of Errata that he intended to name “Chris 27 1 Ibrahim” in Claim Eleven of the TAC, Claim Eleven appears to arise from a separate, 2 unlitigated event involving a different defendant. 3 Hence, to the extent Claim Eleven does not concern events occurring on 4 February 16, 2017, it is not barred by res judicata. Any amended complaint should 5 name with specificity the date and parties involved in the February 19, 2017 incident 6 that is the basis for Claim Eleven. 7 4. Claims Fourteen, Fifteen, Sixteen, and Nineteen and All Claims 8 Against County of Riverside Are Not Barred by Res Judicata 9 Res judicata does not apply to events post-dating the filing of the initial 10 complaint. Howard v. City of Coos Bay, 871 F.3d 1032, 1039 (9th Cir. 2017) (internal 11 quotations and citations omitted). Here, applying such rule, it is clear that the Monell 12 claims in the instant TAC (Claims 14, 15, 16, and 19 and claims against defendant 13 County of Riverside) and the Monell claims in Raiser I are not identical. 14 In Raiser I, following a jury trial, the Court granted defendants’ Rule 50 motion 15 as to Monell liability and damages, and specifically found insufficient evidence to 16 support either Monell liability or damages against defendants. Raiser I, dkt. 364. 17 In Claims 14, 15, and 16 of the TAC, Raiser alleges Monell liability against City 18 of Temecula and County of Riverside for maintaining and ratifying a policy of 19 unlawfully detaining citizens and for failing to train deputies to prevent these allegedly 20 unlawful policies from being carried out. See dkt. 58 at 30–36. In Claim 19, Raiser 21 also appears to allege a Monell claim against defendant County of Riverside. Id. at 22 38–39. 23 While Raiser sets forth a long series of general allegations in the TAC regarding 24 incidents that occurred from 2011 through early 2017, (see id. at ¶ 18-41, 46-65, 195), 25 it appears his Monell claims are based on more recent incidents he identifies as 26 specific claims in the TAC. With the exception of claims Nine, Eleven and Twelve 27 (which concern incidents from 2015 and 2017, and which are subject to dismissal 1 in the TAC occurred between September 2017 and September 2019. See dkt. 58 at 2 18–25, 29, 36–38 (Claims One, Two, Three, Four, Five, Six, Seven, Eight, Thirteen, 3 Seventeen, and Eighteen). Raiser, however, filed his initial complaint in Raiser I on 4 February 6, 2017 and a first amended complaint on May 31, 2017. See Raiser I, dkts. 5 1, 12. Therefore, the stops that occurred from September 2017 through September 6 2019, which provide the basis for Raiser’s current Monell claims, had not yet occurred 7 at the time of the Raiser I action. Raiser, therefore, could not have brought Monell 8 claims in Raiser I based on stops that occurred from 2017 through 2019. Howard, 9 871 F.3d at 1039.12 Hence, because Raiser’s Claims Fourteen, Fifteen, Sixteen and 10 Nineteen arise from events that occurred after he filed his amended complaint in 11 Raiser I, they are not barred by res judicata. In any amended complaint, Raiser shall 12 clarify the specific basis of Monell claims without reference to incidents that he does 13 not assert support such claims. 14 B. STATUTE OF LIMITATIONS 15 1. Applicable Law 16 The applicable statute of limitations for Raiser’s Section 1983 claims is two 17 years. See Wallace v. Kato, 549 U.S. 384, 387 (2007) (holding state personal injury 18 limitation statute governs Section 1983 claims); Cal. Code Civ. Proc. § 335.1 (noting a 19 two-year personal injury statute of limitation). A Section 1983 “cause of action 20 accrues when the plaintiff knows or has reason to know of the injury that is the basis 21 of the action.” Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015), cert. denied, 22 137 S. Ct. 109, reh’g denied, 137 S. Ct. 489 (2016) (citing Kimes v. Stone, 84 F.3d 23 1121, 1128 (9th Cir. 1996)); see also Wallace, 549 U.S. at 388 (holding federal law 24 determines when a cause of action accrues and when the statute of limitations begins 25 to run for a Section 1983 claim). However, California’s “discovery rule” of tolling 26 27 12 Additionally, Raiser clarified he is only bringing Monell claims on the basis of 1 “postpones accrual of a cause of action until the plaintiff discovers, or has reason to 2 discover, the cause of action.” Bone v. City of Los Angeles, 471 F. App’x 620, 622 3 (9th Cir. 2012)13 (citing Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 807 4 (2005)); see also TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (holding that 5 when federal courts borrow a state limitations period, the court also borrows the 6 forum state’s tolling rules). 7 Here, Raiser filed the instant action on August 7, 2019. Dkt. 1. Absent any 8 tolling, any claims arising before August 7, 2017 would be barred by the statute of 9 limitations. 10 2. Claim Nine is Barred by the Statute of Limitations 11 In Claim Nine, Raiser alleges on or about December 12, 2015, his car 12 containing his coat and sleeping bag was towed. Dkt. 58 at 26. Raiser alleges officer 13 “Doe 3” claimed to call the towing company and told Raiser the towing company 14 refused to allow Raiser to get his belongings. Id. Raiser alleges it was not until March 15 2018 during discovery in the Raiser I case that he learned the officer “faked” the 16 phone call to the towing company. Id. at 25–26. Raiser alleges this incident 17 constituted an unlawful seizure in violation of the Fourth and Fourteenth 18 Amendments, “deliberate indifference” in violation of the Eighth Amendment, 19 unlawful taking in violation of the Fifth Amendment, and violation of the Equal 20 Protection Clause of Fourteenth Amendment. Id. 21 Raiser’s argument the Court should apply the delayed discovery rule to this 22 claim is without merit. Whether or not officer “Doe 3” lied about calling the towing 23 company has no bearing on whether the alleged constitutional violations—seizure of 24 Raiser’s car and items, which resulted in him being left without appropriate clothing 25 or a place to sleep—occurred. Moreover, Raiser cannot be said to have “discovered 26 27 1 or had reason to discover” the cause of action in 2018, because he asserted essentially 2 the same claim in Raiser I in 2017. See Raiser I, dkt. 12 at 20–23. 3 Hence, Claim Nine is barred by the statute of limitations. 4 3. Claims Eleven and Twelve Are Barred by the Statute of 5 Limitations 6 In Claim Eleven, Raiser alleges that on February 19, 2017, he was detained by 7 an officer while sitting in his car and was told he was being detained because “several 8 business alarms had gone off in the immediate area.” Dkt. 58 at 27–28. Raiser alleges 9 it was not until August 2017 during discovery in the Raiser I case that he learned the 10 the officer was lying and no alarm had gone off. Id. Raiser now claims the officer 11 involved in this event was Chris Ibrahim and alleges the incident constituted a 12 violation of his Fourth and Fourteenth Amendment rights. 13 Similarly, in Claim Twelve, Raiser alleges that on April 24, 2017, he was sitting 14 in his car and was prevented from driving away by defendant Wade, who informed 15 Raiser “someone had called the police on him.” Id. Raiser alleges it was not until 16 August 2017 during discovery in the Raiser I case that he learned there was no call 17 made to the police. Id. Raiser alleges the incident constituted a violation of his 18 Fourth and Fourteenth Amendment rights. 19 Raiser’s argument the Court should apply the delayed discovery rule to these 20 claims is without merit. The Court finds Raiser was on “inquiry” notice as soon as 21 the stops occurred that they may have been improper because the circumstances 22 known to Raiser during these stops prompted a duty to investigate whether 23 defendants’ actions were unlawful. See Dutro v. Cnty. of Contra Costa, No. 12-CV- 24 02972 NC, 2013 WL 5444431, at *5 (N.D. Cal. Sept. 30, 2013). In both instances, the 25 basis for Raiser’s Constitutional claims that he was illegally stopped and seized, turns 26 on whether Raiser’s own conduct was sufficient to warrant being stopped; not 27 whether the officers gave false reasons for the stop. In addition, Raiser’s contention 1 were lying in August 2017 is belied by the fact that he has filed multiple lawsuits 2 against the City of Temecula, County of Riverside and other defendants in this district 3 for similar stops. See Norgart v. Upjohn Co., 21 Cal.4th 383, 399 n.2 (1999) (finding 4 that a plaintiff discovers the cause of action when he at least suspects a factual basis, 5 as opposed to a legal theory, for its elements). 6 Hence, Claims Eleven and Twelve are barred by the statute of limitations. 7 4. Claim Nineteen Is Not Barred by the Statute of Limitations 8 In Claim Nineteen, Raiser alleges defendant County of Riverside through its 9 “commissions and leadership” was deliberately indifferent and took no steps to 10 minimize or prevent future Fourth Amendment civil rights violations. Dkt. 58 at 38. 11 Claim Nineteen thus appears to be a Monell claim. 12 While Claim Nineteen references incidents that occurred beyond the applicable 13 statute of limitations in this case, including that Raiser was stopped 40 times from 14 2011 through 2017, Claim Nineteen also alleges Raiser’s civil rights were “violated 15 another 10 times over a 2 year period,” which appears to refer to events in the past 16 two years detailed in the TAC. As stated above, the Court finds Raiser’s Monell 17 claims are based on incidents that occurred from September 2017 through September 18 2019, rather than prior incidents. 19 Hence, Claim Nineteen is not barred by the statute of limitations. 20 C. THE TAC FAILS TO STATE AN EQUAL PROTECTION CLAIM 21 In Claims One through Nine, Eleven through Thirteen, and Seventeen through 22 Eighteen, Raiser alleges he was denied equal protection of the laws under the 23 Fourteenth Amendment because Defendants intentionally treated him differently than 24 others similarly situated who park their cars or sit in similar areas. 25 1. Applicable Law 26 “The Equal Protection Clause of the Fourteenth Amendment commands that 27 no State shall ‘deny to any person within its jurisdiction the equal protection of the 1 treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 2 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). In order to state a Section 3 1983 equal protection claim, a plaintiff must allege he was treated differently from 4 others who were similarly situated without a rational basis. See Village of 5 Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (setting forth standard 6 for “class of one” equal protection claim). 7 2. Analysis 8 To the extent Raiser is alleging the conduct of Defendants is based on Raiser’s 9 status as a homeless person, homeless individuals are not a protected class. See Nails 10 v. Haid, No. SACV 12-0439-GW (SS), 2013 WL 5230689, at *3 (C.D. Cal. Sept. 17, 11 2013); Garber v. Flores, No. CV 08-4208DDP (RNB), 2009 WL 1649727, at *10 12 (C.D. Cal. June 10, 2009) (denying equal protection claim based on plaintiff’s status as 13 a homeless person because “[h]omeless persons are not a suspect class”). 14 In addition, to the extent Raiser alleges he was treated differently from other 15 similarly situated individuals, Raiser contradicts this claim by alleging other homeless 16 individuals were similarly stopped and detained. Dkt. 58 at 31–35. Raiser’s claim, 17 therefore, is not premised on “unique treatment” but on a “classification” (i.e. being 18 homeless) which is not a protected class. See Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 19 580, 592 (9th Cir. 2008) (declining to analyze “class of one” argument because 20 plaintiff repeatedly alleged defendants treated it differently “based on its perceived 21 association with conservationists and because it was a newcomer to Idaho grazing 22 markets” and finding plaintiff’s claims were, therefore, not premised on “unique 23 treatment” but on “a classification”). 24 Accordingly, Raiser’s Fourteenth Amendment Equal Protection claims set 25 forth in Claims One through Nine, Eleven through Thirteen, and Seventeen through 26 Eighteen, are subject to dismissal for failure to state a claim. 27 /// 1 D. CLAIM TEN IS NOT REDUNANT 2 1. Applicable Law 3 A claim for declaratory relief may be “unnecessary where an adequate remedy 4 exists under some other cause of action.” Alta Devices, Inc. v. LG Elecs., Inc., 343 F. 5 Supp. 3d 868, 889 (N.D. Cal. 2018) (quoting Reyes v. Nationstar Mortg. LLC, No. 15- 6 CV-01109-LHK, 2015 WL 4554377, at *7 (N.D. Cal. July 28, 2015) (citations 7 omitted)). However, “[t]he existence of another adequate remedy does not preclude a 8 declaratory judgment that is otherwise appropriate.” FED. R. CIV. P. 57. “Ultimately, 9 a critical question is whether the declaratory relief ‘will serve a useful purpose in 10 clarifying and settling the legal relations in issue.’” Alta Devices, Inc., 343 F. Supp. 3d 11 at 889 (quoting McGraw-Edison Co. v. Preformed Line Prods. Co., 362 F.2d 339, 342 12 (9th Cir. 1966)). 13 Qualified immunity “applies only to liability for money damages—not 14 injunctive or declaratory relief.” Daniels Sharpsmart, Inc. v. Smith, 889 F.3d 608, 616 15 (9th Cir. 2018) (citing Hydrick v. Hunter, 669 F.3d 937, 939–40 (9th Cir. 2012) 16 (holding defendants are entitled to qualified immunity on plaintiffs’ claims for money 17 damages but allowing plaintiffs to proceed on remand with claims for declaratory and 18 injunctive relief); Comundoiwilla v. Evans, No. 1:04-CV-06721, 2011 WL 488994, at 19 *4 (E.D. Cal. Feb. 7, 2011), report and recommendation adopted, 2011 WL 1002802 20 (E.D. Cal. Mar. 18, 2011) (“[a]lthough the Court finds that Defendants are entitled to 21 qualified immunity, their immunity from damages does not bar Plaintiff’s claims for 22 declaratory relief.”). 23 2. Applicable Law 24 Here, Claim Ten seeks a “declaratory judgment that [Raiser’s] civil rights were 25 violated in causes of action 1-9, 11-18.” Dkt. 58 at 27. Raiser is also seeking money 26 damages on claims One through Nine and Eleven through Eighteen. Dkt. 58. 27 However, Raiser’s claims for money damages might be limited by the doctrine of 1 F.3d at 939–40. In addition, declaratory relief as to whether Defendants have violated 2 Raiser’s civil rights may be useful in clarifying and settling the legal relations at issue in 3 this case. Alta Devices, Inc., 343 F. Supp. 3d at 889. Finally, while Raiser’s request 4 for declaratory relief may not be available depending upon his proof at trial, at this 5 stage, Raiser’s request for declaratory relief is not redundant. 6 Hence, Claim Ten is not subject to dismissal. 7 E. CERTAIN DOE DEFENDANTS ARE SUBJECT TO DISMISSAL 8 1. Applicable Law 9 Section 1983 prohibits persons acting under color of law from depriving 10 individuals of their constitutional rights. 42 U.S.C. § 1983. To state a claim against a 11 defendant for violation of civil rights under Section 1983, a plaintiff must allege that 12 the defendant deprived him or her of a right guaranteed under the Constitution or a 13 federal statute. See West v. Atkins, 487 U.S. 42, 48 (1988); Karim-Panahi v. Los 14 Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1998). A plaintiff must present 15 facts showing how a particular defendant was directly and personally involved in 16 inflicting the alleged injury. See Iqbal, 556 U.S. at 676. Moreover, although a 17 complaint need not include detailed factual allegations, it “must contain sufficient 18 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 19 Cook, 637 F.3d at 1004 (quoting Iqbal, 556 U.S. at 678). 20 2. Analysis 21 Here, many of Raiser’s claims against DOE defendants are erroneous, or 22 subject to dismissal because such defendants have now been identified, or 23 alternatively because the TAC does not contain “sufficient allegations of underlying 24 facts to give fair notice and to enable the opposing party to defend itself effectively” 25 against Raiser’s claims. Starr, 652 F.3d at 1216. 26 First, Raiser has identified certain defendants, and as such, the use of “DOE” 27 designations is no longer needed. Raiser identified defendant Aguire as Doe 1 in 1 identified defendant Rodriguez (also designated “Doe 2”) in Claim Seven. Id. at 23. 2 Raiser identified defendant Wood (designated “Doe 5”) in Claim Thirteen. Id. at 29. 3 Therefore, these named defendants are not “DOES”, and any references made to 4 DOE with respect to Claim One, Two, Seven, and Thirteen appear to be erroneous.14 5 On the other hand, the designation of DOE is warranted for certain 6 defendants Raiser has not yet named. In Claim Four, Raiser alleges a “Riverside 7 county deputy” detained him. Id. at 20. In Claim Five, Raiser alleges he was detained 8 by “a Riverside county deputy” (Raiser appears to erroneously name this defendant as 9 Doe 1). Id. at 21–22. In Claim Seventeen, Raiser alleges “Doe 15”, “a Riverside 10 county deputy and Temecula police officer” detained him. Id. at 26. In Claim 11 Eighteen, Raiser alleges three deputies walked up behind Raiser’s car and “Doe 17” 12 ordered Raiser out of his car with his gun drawn. Id. at 37. 13 All other DOE defendants are not specifically listed as defendants in any 14 Claim, nor does Raiser state any factual allegations against them. Hence, all claims 15 against DOE defendants, with the exception of the following, are subject to dismissal: 16 • Claim Four, 17 • Claim Five, 18 • Claim Seventeen (“Doe 15” ), and 19 • Claim Eighteen (“Doe 17”). 20 See Iqbal, 556 U.S. at 676 (holding plaintiff must present facts showing how a 21 particular defendant was directly and personally involved in inflicting the alleged 22 injury). 23 VI. 24 LEAVE TO FILE A FOURTH AMENDED COMPLAINT 25 For the foregoing reasons, the TAC is subject to dismissal. As the Court is 26 unable to determine whether amendment would be futile, leave to amend is granted. 27 1 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is 2 advised that the Court’s determination herein that the allegations in the TAC are 3 insufficient to state a particular claim should not be seen as dispositive of that claim. 4 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 5 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 6 face, Plaintiff is not required to omit any claim in order to pursue this action. 7 However, if Plaintiff asserts a claim in his Fourth Amended Complaint that has been 8 found to be deficient without addressing the claim’s deficiencies, then the Court, 9 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned 10 district judge a recommendation that such claim be dismissed with prejudice for 11 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 12 the district judge as provided in the Local Rules Governing Duties of Magistrate 13 Judges. 14 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 15 service date of this Order, Plaintiff choose one of the following three options: 16 1. Plaintiff may file a Fourth Amended Complaint to attempt to cure the 17 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank 18 Central District civil rights complaint form to use for filing the Fourth Amended 19 Complaint, which the Court encourages Plaintiff to use. 20 If Plaintiff chooses to file a Fourth Amended Complaint, he must clearly 21 designate on the face of the document that it is the “Fourth Amended Complaint,” it 22 must bear the docket number assigned to this case, and it must be retyped or 23 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 24 include new defendants or allegations that are not reasonably related to the claims 25 asserted in the TAC. In addition, the Fourth Amended Complaint must be complete 26 without reference to the TAC, SAC, FAC, Complaint, or any other pleading, 27 attachment, or document. 1 An amended complaint supersedes the preceding complaint. Ferdik v. 2 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 3 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 4 leave to amend as to all his claims raised here, any claim raised in a preceding 5 complaint is waived if it is not raised again in the Fourth Amended Complaint. 6 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 7 The Court advises Plaintiff that it generally will not be well-disposed toward 8 another dismissal with leave to amend if Plaintiff files a Fourth Amended Complaint 9 that continues to include claims on which relief cannot be granted. “[A] district 10 court’s discretion over amendments is especially broad ‘where the court has already 11 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. 12 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 13 1261. Thus, if Plaintiff files a Fourth Amended Complaint with claims on 14 which relief cannot be granted, the Fourth Amended Complaint will be 15 dismissed without leave to amend and with prejudice. 16 2. Alternatively, Plaintiff may file a notice with the Court that he intends to 17 stand on the allegations in his TAC. If Plaintiff chooses to stand on the TAC despite 18 the deficiencies in the claims identified above, then the Court will submit a 19 recommendation to the assigned district judge that the deficient claims discussed 20 in this Order be dismissed with prejudice for failure to state a claim, subject to 21 Plaintiff’s right at that time to file Objections with the district judge as provided in the 22 Local Rules Governing Duties of Magistrate Judges. If the assigned district judge 23 accepts the findings and recommendations of the undersigned Magistrate Judge and 24 dismisses the deficient claims discussed in this Order, the Court will issue a separate 25 order regarding service of any claims remaining in the TAC at that time. 26 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 27 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to 1 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff 2 to use if he chooses to voluntarily dismiss the action. 3 Plaintiff is explicitly cautioned that failure to timely respond to this 4 Order will result in this action being dismissed without prejudice for failure to 5 prosecute and/or obey Court orders pursuant to Federal Rule of Civil 6 Procedure 41(b). 7 8 Dated: December 30, 2020 9 HONORABLE KENLY KIYA KATO United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27