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Darryl Dunsmore v. State of California

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


September 4, 2012

DARRYL DUNSMORE, PLAINTIFF,
v.
STATE OF CALIFORNIA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. David O. Carter United States District Judge

ORDER: (1) ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; AND (2) DENYING PLAINTIFF'S MOTION FOR TRO INJUNCTIVE RELIEF

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Complaint ("SAC"), the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.

Like the SAC, Plaintiff's Objections are disjointed, rambling, and difficult to understand. And nothing in them refutes the Magistrate Judge's findings that Plaintiff has failed to plausibly allege that: (1) defendants Warden Cash, Warden Sullivan, and Hernandez violated his rights under the Constitution or Americans with Disabilities Act; and (2) defendant State of California was the moving force behind the alleged violations.

Further, the Court finds that, despite Plaintiff's purported attempts to clarify his doe allegations, they remain ambiguous, conclusory, and confusing. Indeed, in light of the nearly 50 doe defendants identified in the Objections, and the muddled nature in which they are named, Plaintiff has managed to make his doe allegations even more unintelligible. For many of the does, Plaintiff fails to connect them to the specific allegations contained in the SAC. And for the rest, Plaintiff fails to give them "fair notice of what the claim[s] [are] and the grounds upon which [they] rest[] ...." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks and citation omitted).

Finally, the Court has considered Plaintiff's "Motion for TRO Injunctive Relief" ("Motion"), filed on August 14, 2012. The Court notes that this is Plaintiff's fourth request for emergency injunctive relief. For the reasons stated in the Court's October 1, 2011, November 22, 2011, and March 22, 2012 Orders denying injunctive relief, the Motion is denied.

Accordingly, IT IS ORDERED THAT:

1. The Report and Recommendation is approved and accepted;

2. Judgment be entered dismissing this action as follows:

a. Dismissing Plaintiff's claims against Warden Cash, Warden Sullivan, Hernandez, and the State of California with prejudice;

b. Dismissing Plaintiff's official capacity claims against the Doe Defendants with prejudice; and

c. Dismissing Plaintiff's individual capacity claims against the Doe Defendants without prejudice.

3. Plaintiff's Motion for TRO Injunctive Relief [Docket No. 39] is DENIED; and

4. The Clerk serve copies of this Order and the Judgment on the parties.

20120904

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