On September 4, 2009, the magistrate judge filed findings and recommendations herein which were served on the parties and which contained notice that any objections to the findings and recommendations were to be filed within ten days. No objections were filed.
However, plaintiff subsequently filed an "Amended Complaint," Dckt. No. 49, that reflects he had not reviewed the court's findings and recommendations, or awaited this court's order. Accordingly, this document will be disregarded. Plaintiff may file a Second Amended Complaint consistent with the instructions set forth herein.
Accordingly, the court presumes any findings of fact are correct. See Orland v. United States, 602 F.2d 207, 208 (9th Cir. 1999). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).
The court has reviewed the applicable legal standards and, good cause appearing, concludes that it is appropriate to adopt the proposed Findings and Recommendations in full.
Accordingly, IT IS ORDERED that:
1. The proposed Findings and Recommendations filed September 4, 2009, are ADOPTED;
2. Defendant's motion to dismiss plaintiff's complaint, Dckt. No. 19, is granted in part, and plaintiff's claims pursuant to the First, Sixth and Eighth Amendments are dismissed without leave to amend;
3. Defendant's motion to dismiss plaintiff's complaint is denied in part, and plaintiff is granted leave to file a Second Amended Complaint, against defendants Dahl, John Doe 1 (whom plaintiff should name, if possible), and the Sacramento Police Department, which better articulates plaintiff's claims pursuant to the Fourth, and Fourteenth Amendments;
4. Plaintiff is directed to file his Second Amended Complaint within thirty days of the filing date of this order; and,
5. Plaintiff's "Amended Complaint" filed September 8, 2009, Dckt. No. 49, is disregarded.
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