(PS) Gifford v. Hanson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER GIFFORD, No. 2:21-cv-00119-TLN-DMC 12 Plaintiff, 13 v. ORDER 14 MICHELE HANSON, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. The matter was referred to a 18 United States Magistrate Judge pursuant to Eastern District of California local rules. 19 On March 3, 2022, the magistrate judge filed findings and recommendations herein which 20 were served on the parties and which contained notice to the parties that any objections to the 21 findings and recommendations were to be filed within fourteen days. (ECF No. 28.) Plaintiff 22 filed timely objections to the findings and recommendations. (ECF No. 31.) 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this 24 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 25 Court finds that it is appropriate to adopt in part and reject in part the findings and 26 recommendations for the reasons stated herein. 27 Plaintiff initiated this action and filed his complaint while proceeding pro se. (ECF No. 28 1.) As to Defendants’ motion to dismiss (ECF No. 14), the findings and recommendations 1 recommend the motion be granted as to Plaintiff’s federal constitutional and statutory claims. 2 (ECF No. 28 at 17.) More specifically, the findings and recommendations recommend Plaintiff’s 3 federal constitutional and statutory claims be dismissed with leave to amend except for Plaintiff’s 4 equal protection claims. (Id. at 17–18.) For Plaintiff’s equal protection claims, which are 5 composed of portions of Counts II, V, VI, VII, and XI of the complaint (ECF No. 1 at 15–20), the 6 findings and recommendations recommend they be dismissed with prejudice (ECF No. 28 at 18). 7 In Plaintiff’s objections, Plaintiff argues he should be granted leave to amend the equal 8 protection claims. (ECF No. 31 at 10.) Plaintiff asserts he can amend the complaint to add 9 additional facts “fleshing out” his equal protection claims. (Id. at 1, 1 n.1.) Additionally, 10 Plaintiff cites Ninth Circuity authority regarding liberality in amendments to pleadings and pro se 11 litigants. (Id. at 10 (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on 12 other grounds by statute as stated in Akhtar v. Mesa, 698 F.3d 1202 (9th Cir. 2012)).) 13 The Court agrees that Plaintiff’s federal equal protection claims are deficient for the 14 reasons set forth in the findings and recommendations. (ECF No. 28 at 13–15.) However, the 15 Court recognizes Plaintiff is proceeding pro se and on his original complaint. (ECF No. 1.) 16 “[L]eave to amend should be granted if it appears at all possible that the plaintiff can correct the 17 defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (quoting Balistreri v. 18 Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1988)). “The rule favoring liberality in 19 amendments to pleadings is particularly important for the pro se litigant.” Crowley v. Bannister, 20 734 F.3d 967, 977–78 (9th Cir. 2013). As stated, Plaintiff has asserted he can plead additional 21 facts in support of his equal protection claims. (ECF No. 31 at 1, 1 n.1.) 22 Accordingly, the Court rejects the findings and recommendations with respect to the 23 recommendation to dismiss Plaintiff’s federal equal protection claims without leave to amend and 24 instead the Court dismisses Plaintiff’s federal equal protection claims with leave to amend. 25 In all other respects, the Court finds the findings and recommendations to be supported by 26 the record and by proper analysis. 27 /// 28 /// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendations filed March 3, 2022 (ECF No. 28), are 3 ADOPTED in part and REJECTED in part as follows; 4 2. Defendants’ Motion to Set Aside Entry of Defaults (ECF No. 15) is GRANTED; 5 3. The defaults entered as against Defendants Puckett, Hanson, and Hornbrook 6 Community Services District are set aside; 7 4. Plaintiff’s Motion for Default Judgment (ECF No. 10) is DENIED as moot; 8 5. Defendants’ Motion to Dismiss (ECF No. 14) is GRANTED as to Plaintiff’s 9 federal constitutional and statutory claims as follows: 10 a. Plaintiff’s First Amendment claims (Counts I and VIII) are DISMISSED with leave to amend; 11 b. Plaintiff’s due process claims (portions of Counts II, V, 12 VI, VII, and XI) are DISMISSED with leave to amend; 13 c. Plaintiff’s equal protection claims (portions of Counts II, V, VI, VII, and XI) are DISMISSED with leave to amend; 14 d. Plaintiff’s voting rights claims (Counts III and VII) are 15 DISMISSED with leave to amend; 16 e. Plaintiff’s Fourth Amendment claims (Count XII and portion of Count II) are DISMISSED with leave to amend; 17 f. Plaintiff’s federal statutory claims (Count IV and references 18 elsewhere in the complaint to the Safe Drinking Water Act) are DISMISSED with leave to amend; 19 20 6. Defendants’ Motion to Dismiss (ECF No. 14) is DENIED without prejudice as to 21 Plaintiff’s state law claims; 22 7. Plaintiff’s Complaint (ECF No. 1) is DISMISSED with leave to amend consistent 23 with this Order; and 24 8. Plaintiff shall file a first amended complaint within sixty days of the date of this 25 Order. 26 DATED: September 21, 2022 27 28