(PC) Ellis v. Kern County Sheriff Department ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES ELLIS, SR., No. 1:22cv-1209 JLT SAB (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. DEFENDANT’S MOTION TO DISMISS 14 KERN COUNTY SHERIFF (Docs. 21, 35) DEPARTMENT, et al., 15 Defendants. 16 17 Plaintiff seeks to hold Sgt. Escandon and the County of Kern liable for the use of 18 excessive force in violation of his rights arising under the Fourteenth Amendment. (Doc. 9) The 19 County moved to dismiss Plaintiff’s claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil 20 Procedure, asserting Plaintiff failed to allege facts sufficient to impose municipal liability upon 21 the County. (Doc. 21.) 22 The assigned magistrate judge found Plaintiff stated a cognizable claim against the 23 County, because “when viewed in the light most favorable to Plaintiff, …[he] sufficiently stated 24 that the County’s policy of allowing custody staff to disapprove of medical professional’s 25 recommendations was the moving force behind Plaintiff’s claim of deliberate indifference.” 26 (Doc. 35 at 6.) Therefore, the magistrate judge recommended the County’s motion to dismiss be 27 denied. (Id.) The Court served the Findings and Recommendations on the parties and notified 28 them that any objections were due within 21 days. (Id.) The Court advised them also that the 1 | “failure to file objections within the specified time may result in the waiver of rights on appeal.” 2 | Ud., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) No objections were 3 | filed, and the time to do so expired. 4 According to 28 U.S.C. § 636(b)(1)(C), the Court performed a de novo review of this case. 5 | Having carefully reviewed the entire matter, the Court concludes the Findings and 6 | Recommendations are supported by the record and by proper analysis. Thus, the Court ORDERS: 7 1. The Findings and Recommendations issued on October 17, 2023 (Doc. 35), are 8 ADOPTED in full. 9 2. Defendant’s motion to dismiss (Doc. 21) is DENIED. 10 3. Defendants SHALL file an answer within fourteen days from the date of service 11 of this order. 12 B IT IS SO ORDERED. 14 Dated: _ November 28, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28