(PS) Schmitz v. Asman ( 2022 )

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, 13 v. ORDER 14 A. ASMAN, et al., (ECF Nos. 179, 181, 182, 200) 15 Defendants. 16 17 On June 29, 2022, the magistrate judge filed findings and recommendations (ECF 18 No. 200), 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. No objections were 20 filed. Accordingly, the court presumes that any findings of fact are correct. See Orand v. United 21 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 22 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 23 1983). 24 The court has reviewed the applicable legal standards and, good cause appearing, 25 concludes that it is appropriate to adopt the findings and recommendations in full. Accordingly, 26 IT IS HEREBY ORDERED that: 27 1. The findings and recommendations (ECF No. 200) are ADOPTED IN FULL; 28 1 2. Defendants’ motions to dismiss (ECF Nos. 179 & 181) are GRANTED IN PART and 2 DENIED IN PART, as follows: 3 a. The motion to dismiss all claims against the CDCR is GRANTED, and the CDCR 4 is dismissed from this action; 5 b. The motion to dismiss the First Cause of Action for deliberate indifference against 6 defendants Ashe and C. Smith is GRANTED, and those claims are dismissed with 7 prejudice; 8 c. The motion to dismiss the First Cause of Action against defendant DeNigris is 9 DENIED; 10 d. The motion to dismiss the Fourth Cause of Action for deprivation of familial 11 relationship against defendants Ashe and C. Smith is GRANTED, and those 12 claims are dismissed with prejudice; 13 e. The motion to dismiss the Fourth Cause of Action against defendant DeNigris is 14 DENIED; 15 f. The motion to dismiss the Fifth Cause of Action (asserted against defendant 16 C. Smith alone) is GRANTED, and that cause of action is dismissed with 17 prejudice; 18 g. The motion to dismiss the Sixth Cause of Action for wrongful death against all 19 moving CDCR defendants (Adams, Ashe, Asman, Brizendine, Brockenborough, 20 Ceballos, Diaz, Gipson Heatley, Kernan, Leidner, Ponciano, Rekart, Rudas, C. 21 Smith, Tebrock, and Toche) is DENIED; 22 h. The motion to dismiss the Seventh Cause of Action for medical negligence against 23 defendants Ashe, Rudas, and C. Smith is DENIED; 24 i. The motion to dismiss the Eighth Cause of Action for violation of California Civil 25 Code § 52.1 (Bane Act) is DENIED; 26 j. The motion to dismiss the Ninth Cause of Action for medical battery is DENIED; 27 28 1 k. The motion to dismiss the Tenth Cause of Action for assault (asserted against 2 defendant DeNigris alone) is GRANTED, and that cause of action is dismissed 3 with prejudice; 4 l. The motion to dismiss the punitive damages claims against defendant DeNigris 5 from the Eighth, Ninth, and Tenth Causes of Action is GRANTED, and those 6 damages claims are dismissed with prejudice; and 7 m. The motion to dismiss the punitive damages claims against defendant DeNigris 8 from the First and Fourth Causes of Action is DENIED. 9 3. All defendants who have yet to answer the 4AC SHALL file an answer within thirty (30) 10 days of the date of entry of this order, unless the parties stipulate to an extension. 11 4. Plaintiffs’ motion to strike the answer filed by defendants Kuich and Lizarraga (ECF 12 No. 182) is GRANTED IN PART, as follows: 13 a. Paragraphs 48, 80, 82, 121, 122 of the answer (ECF No. 178) are stricken, with 14 leave to amend; 15 b. Affirmative Defenses 2, 4, 5, 6, 10, 11, and 13 are stricken, with leave to amend; 16 c. Affirmative Defenses 1, 7, 12, 17, and 19 are stricken with prejudice; and 17 d. Plaintiffs’ motion is DENIED in all other respects. 18 5. Defendants Kuich and Lizarraga may file any amended answer within thirty (30) days of 19 the date of entry of this order. 20 a. Failure to do so will result in the corresponding factual allegations of the 4AC 21 being deemed admitted; and 22 6. The case is referred again to the assigned Magistrate Judge for further proceedings. 23 24 DATED: July 26, 2022 /s/ John A. Mendez 25 THE HONORABLE JOHN A. MENDEZ SENIOR UNITED STATES DISTRICT JUDGE 26 27 28