(PS) Schmitz v. Asman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS SCHMITZ, et al., No. 2:20–cv–00195–JAM-CKD PS 12 Plaintiffs, ORDER 13 v. (ECF Nos. 138-40, 145, 156) 14 A. ASMAN, et al., 15 Defendants. 16 17 On August 3, 2021, the magistrate judge filed findings and recommendations (ECF 18 No. 156), which were served on the parties and which contained notice that any objections to the 19 findings and recommendations were to be filed within fourteen (14) days. On August 17, 2021, 20 plaintiffs timely filed objections to the findings and recommendations (ECF No. 158), to which 21 defendant Bradley replied (ECF No. 160), both of which have been considered by the court. 22 This court reviews de novo those portions of the proposed findings of fact to which an 23 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 24 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981); see also Dawson v. Marshall, 561 F.3d 25 930, 932 (9th Cir. 2009). As to any portion of the proposed findings of fact to which no objection 26 has been made, the court assumes its correctness and decides the matter on the applicable law. 27 See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s 28 conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 1 452, 454 (9th Cir. 1983). 2 The court has reviewed the applicable legal standards and, good cause appearing, 3 concludes that it is appropriate to adopt the findings and recommendations in full. Accordingly, 4 IT IS HEREBY ORDERED that: 5 1. The findings and recommendations (ECF No. 156) are ADOPTED IN FULL; 6 2. Plaintiffs’ motion to amend (ECF No. 145) is GRANTED IN PART and DENIED IN 7 PART, as follows: 8 a. The two causes of action against defendants Asman and Bradley under 42 U.S.C. 9 § 1983 remain dismissed with prejudice; 10 b. Leave to amend the complaint to reassert those two § 1983 causes of action against 11 Asman and Bradley, and any other claims previously dismissed with prejudice, is 12 DENIED; 13 c. Leave to otherwise amend the complaint is GRANTED; 14 3. Within 30 days of this order, plaintiffs shall (A) file a Fourth Amended Complaint along 15 with any desired exhibits attached, or (B) notify the court that no amended complaint will 16 be filed and the action will proceed on the currently operative complaint; 17 a. Any Fourth Amended Complaint (i) shall be limited to the defendants named and 18 causes of action asserted in the Proposed Fourth Amended Complaint (ECF 19 No. 145 at 237-344), and (ii) shall not assert any claims previously dismissed with 20 prejudice, unless plaintiffs first obtain leave of court; 21 4. The pending motions to partially dismiss the Third Amended Complaint (ECF Nos. 138- 22 40) are DENIED as moot; and 23 5. The case is referred again to the assigned Magistrate Judge for further proceedings. 24 25 Dated: September 23, 2021 /s/ John A. Mendez 26 THE HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE 27 28