United States District Court, C.D. California
March 31, 2015
ANDRE JOHNSON, Plaintiff,
WEST VALLEY DETENTION CENTER, et al., Defendants.
ORDER ACCEPTING IN PART FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
CORMAC J. CARNEY, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed all the records and files herein, including the Magistrate Judge's Report and Recommendation (R&R"), and a document filed by plaintiff on March 20, 2015 that the Court construes as plaintiff's objections to the R&R. Further, the Court has made a de novo determination of those portions of the R&R to which objections have been made.
In the operative Fifth Amended Complaint ("5AC"), plaintiff has named two defendants: West Valley Detention Center and Officer Carnell, who is named solely in his official capacity. Plaintiff is purporting to allege a claim against West Valley Detention Center for the loss of funds from his inmate account due to the negligence of County Sheriff employees in allowing the misappropriation by plaintiff's cellmate to take place, and purporting to allege claims against Officer Carnell based on his alleged willful failure to provide plaintiff with clean clothing for approximately one month and for discrimination on the basis of race.
The Court concurs with and accepts the Magistrate Judge's findings that the allegations of the 5AC are insufficient to state a federal civil rights claim against West Valley Detention Center based on the misappropriation of funds from plaintiff's inmate account; and that this pleading deficiency is incapable of being cured by amendment. Accordingly, that claim is dismissed without leave to amend.
The Court also concurs with and accepts the Magistrate Judge's finding that the allegations of the 5AC are insufficient to state federal civil rights claims against Officer Carnell in his official capacity. However, based on the statement in plaintiff's objections that he would like to amend his second claim to name Officer Carnell solely in his individual capacity, the Court declines at this time to accept the Magistrate Judge's recommendation that plaintiff's claim(s) against Officer Carnell also be dismissed without leave to amend.
Instead, plaintiff's claim(s) against Officer Carnell are dismissed with leave to amend and plaintiff is ORDERED to file a Sixth Amended Complaint within thirty (30) days of the service date of this Order that is limited to his claims against Officer Carnell based on Officer Carnell's alleged willful failure to provide plaintiff with clean clothing for approximately one month and for discrimination on the basis of race, and which names Officer Carnell solely in his individual capacity.
The Sixth Amended Complaint should bear the docket number assigned in this case; be labeled "Sixth Amended Complaint"; and be complete in and of itself without reference to any of plaintiff's previous complaints. The clerk is directed to send plaintiff a blank Central District civil rights complaint form, which plaintiff is encouraged to utilize.
Plaintiff is admonished that, if he fails to timely file a Sixth Amended Complaint in compliance with this Order, this action will be subject to dismissal without prejudice for failure to diligently prosecute.