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Michael Angelo Serrato v. County of Los Angeles

February 6, 2013

MICHAEL ANGELO SERRATO, PLAINTIFFS,
v.
COUNTY OF LOS ANGELES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Proceedings

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a damages complaint under 42 U.S.C § 1983. For the reasons described below, the complaint is dismissed with leave to amend for failure to state a claim. Plaintiff has three options:

(1) Plaintiff may continue this action in this court by filing a "First Amended Complaint" within twenty-one (21) days of the date of this order. No extension of time will be granted absent a showing of good cause supported by a declaration under penalty of perjury. Plaintiff may plead additional supporting facts when doing so could remedy the defects described below. Plaintiff may not add new claims or new defendants to his first amended complaint, except that he may substitute the names, if known, of any "Doe" defendant.

(2) Plaintiff may file a "Notice of Intent Not to Amend Complaint" within twenty-one (21) days of the date of this order. The timely filing of a notice of intent not to amend will be construed as an indication that plaintiff wishes to challenge dismissal of the complaint by seeking review of this order in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiff's intent not to file an amended complaint, this action will be dismissed with prejudice for failure to state a claim, and plaintiff will be free to appeal the order of dismissal. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

(3) Plaintiff may do nothing in response to this order. If plaintiff does not respond to this order by filing either a timely amended complaint or a timely notice of intent not to amend, plaintiff will be deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this order. See Edwards, 356 F.3d at 1063-1066.

Plaintiff's allegations Plaintiff alleges that claims arising from events on December 27, 2007; January 23, 2008; February

15, 2008; April 11, 2009; May 14, 2009; and May 15, 2009. [Complaint 3]. All of the individual defendants except Rommel Chavez ("Chavez") are alleged to have been employees of the Los Angeles Angeles County Sheriff's Department employees. They are sued in their individual capacity only. Plaintiff alleges as follows.

On December 27, 2007, defendant Chavez, a Long Beach, California police officer, and John Does 1 and 2 violated his Fourth Amendment rights in connection with plaintiff's arrest, a search of plaintiff's mother's home, and a seizure of property found during the search. [Complaint 3,5].

On January 23, 2008, defendant Hinton violated Los Angeles County (the "County") policy, customs, and procedures by directing inmates to "assault" plaintiff. [Complaint, attachment].

On February 15, 2008, defendants Baltazar, Loza, and Austin violated County policy, customs, and procedures that protect inmates in County custody from assault. [Complaint 3-4].

On April 11, 2009, defendant Graham violated County policy, customs, and procedures that protect inmates in County custody from the use of excessive force. [Complaint 4].

On May 14, 209, defendant Goodwin violated County policy, customs, and procedures when he "maliciously and sadistically . . . sexually assaulted" plaintiff during a cell search. [Complaint 4].

On May 15, 2009, defendant John Doe violated County policy, customs, and procedures that were implemented to protect inmates in protective custody and keep them separate from inmates in the general population, ...


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