UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
June 30, 2010
ALTHEIA TAYLOR, PLAINTIFF,
CITY OF SAN BERNARDINO, ET AL, DEFENDANTS.
The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER ACCEPTING AND ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all of the records herein, the Report and Recommendation of United States Magistrate Judge, and plaintiff's Objections. The Court has conducted a de novo review of those matters to which Objections have been stated in writing. Having completed its review, the Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that the First Amended Complaint is dismissed as follows:
(1) Claim One of the First Amended Complaint withstands screening as to defendant Officer S. Casarez, but is dismissed with leave to amend as to defendants City of San Bernardino and Officer Acosta;
(2) Claims Two, Three and Five of the First Amended Complaint are dismissed against all defendants, without leave to amend. Although leave to amend is not granted, Claim Two and Claim Five are dismissed without prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994). If plaintiff succeeds in reversing her state court conviction, she may reassert these claims in a new action.
(3) Claim Four of the First Amended Complaint is dismissed with leave to amend. Plaintiff has already had one opportunity to cure the deficiencies in this cause of action and has failed to do so. Plaintiff is cautioned that if she fails to cure the deficiencies noted in any Second Amended Complaint that is filed, this claim will be dismissed without leave to amend.
(3) Plaintiff is granted leave to file a Second Amended Complaint consistent with this Order and the Report and Recommendation, namely, a complaint which alleges a Fourth Amendment excessive force claim against defendants Casarez, the City of San Bernardino, and Acosta and an equal protection claim against defendants Casarez, the City of San Bernardino, Acosta and Defendant Doe 3.
Plaintiff shall have thirty (30) days from the date of this Order within which to file and serve upon counsel for the City a Second Amended Complaint that attempts to cure the defects described in the Report and Recommendation. The Second Amended Complaint, if any, shall be complete in itself. It shall not refer in any manner to the original Complaint or the First Amended Complaint.
Plaintiff is explicitly cautioned that failure to timely file a Second Amended Complaint may result in a dismissal of this action for failure to prosecute and/or for failure to comply with this Court's orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
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