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Godinez v. Lara

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 21, 2010

RICHARD GODINEZ, PLAINTIFF,
v.
FELIX M. LARA, FRESNO CALIFORNIA HIGHWAY PATROL, VISALIA COUNTY HIGHWAY PATROL, TULARE COUNTY HIGHWAY PATROL, TULARE COUNTY SHERIFF'S OFFICE, VISALIA POLICE DEPARTMENT, CITY OF VISALIA, JOHN DOES, 1-50, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS

(Doc. 7)

On May 3, 2019, the Magistrate Judge issued Findings and Recommendations recommending that several causes of action as well as several Defendants be dismissed from this action. The Court further recommended that Plaintiff be allowed to file an amended complaint to address specific claims. The Findings and Recommendations were served on Plaintiff and contained notice that any objections were to be filed within thirty (30) days. Plaintiff has not filed any objections.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(c), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the Findings and Recommendations are supported by the record and proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations dated May 3, 2010, are ADOPTED IN FULL;

2. Plaintiff's claims of a violation 42 U.S.C. § 1983 based on the Eighth and Fourteenth Amendment of the United States Constitution are DISMISSED;

3. Plaintiff's claim made pursuant to Article 1 § 13 of the California Constitution is DISMISSED;

4. Any causes of action against any Defendants in their official capacities. are DISMISSED;

5. The following Defendants are DISMISSED from this action and the Clerk of the Court shall terminate these Defendants on the docket:

a) the Fresno California Highway Patrol

b) the Visalia County Highway Patrol

c) the Tulare County Highway Patrol

d) the Tulare County Sheriff's Department and

e) the Visalia Police Department; 6 Plaintiff shall be permitted to file an amended complaint to include claims made pursuant to 42 U.S.C. § 1983 for any violations of the Fourth Amendment of the United States Constitution against any law enforcement officer or supervisor in their individual capacity, or against the City of Visalia. The amended complaint may also include a cause of action based on a violation of California Civil Code § 52.1;

7. Any amended Complaint shall be filed within thirty (30) days of the date of service of this order. If Plaintiff decides to file an amended complaint, he is reminded that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. If Plaintiff attempts to amend beyond the claims outlined above, the Court will dismiss the case; and

8. Finally, Plaintiff is also advised that if he fails to timely file an amended Complaint, the Court will dismiss this action for failure to follow the Court's order and diligently prosecute this action.

IT IS SO ORDERED.

20100621

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