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Brodheim v. Cry

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 8, 2010

MICHAEL J. BRODHEIM, PLAINTIFF,
v.
MICHAEL CRY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On May 18, 2010, this court directed the parties to file separate status reports following the remand of this case by the Ninth Circuit Court of Appeals in Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009). The Ninth Circuit reversed the September 25, 2007 decision of the District Court which had granted summary judgment to defendants on plaintiff's retaliation claim. The Ninth Circuit found that plaintiff's retaliation claim was not barred on res judicata grounds and that plaintiff had produced sufficient evidence to create a genuine issue of material fact as to each of the required elements of the claim. The Ninth Circuit also reinstated plaintiff's state law claims. Accordingly, the action proceeds against defendants Michael Cry, Ana Ramirez Palmer, and J. Valdez.

In their status report, defendants assert that this action should ultimately be dismissed as moot because plaintiff seeks only equitable relief against defendants in their official capacity, each defendant has now retired, and plaintiff is unable to demonstrate a continuation of the alleged unconstitutional conduct by defendants' successors. In response to plaintiff's stated intent to "seek leave to file an amended complaint, which will state no new causes of action" but "will add a request for attorney's fees and statutory damages under the Bane Civil Rights Act," defendants assert that the Eleventh Amendment bars any claim for damages against defendants in their official capacities. Further, defendants assert that plaintiff's state tort claims, which they characterize as stated "in the alternative," are barred by plaintiff's failure to comply with the California Tort Claims Act.

The operative complaint, the Third Amended Complaint, was filed September 22, 2004, and includes a supplemental document. (Dkt. No. 54.) The court must resolve whether plaintiff should be granted leave to file a further amended complaint before scheduling the remainder of this action.

Accordingly, plaintiff shall, on or before July 2, 2010, file and serve a fully-briefed request for leave to file a Fourth Amended Complaint, along with the proposed Fourth Amended Complaint. Defendants shall file and serve a response within fourteen days after service of the request. Plaintiff may file and serve a reply within seven days after service of defendants' response. Upon review of this briefing, the court will determine whether to schedule a hearing on this matter before rendering a decision.

SO ORDERED.

20100608

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