United States District Court, C.D. California
April 28, 2015
FLOYD HILLS NELSON et al., Plaintiffs,
CITY OF LOS ANGELES et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE
PHILIP S. GUTIERREZ, District Judge.
The Court has reviewed the First Amended Complaint, records on file, and Report and Recommendation of U.S. Magistrate Judge regarding the motions to dismiss filed by Los Angeles County, Donald Hinton, Tiffany Allen, George Lavey, and William Gilbert ("County Defendants"). See 28 U.S.C. § 636. No objections to the Report and Recommendation have been filed. The Court accepts the findings and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that County Defendants' motions to dismiss are granted in part and denied in part and Plaintiffs' motion to amend is granted in part and denied in part, as follows:
(1) Plaintiffs may proceed on their claims that (a) Hinton, Lavey, and Gilbert retaliated against Plaintiff Floyd Hills Nelson in violation of the First Amendment, (b) Hinton retaliated against Plaintiff Alonzo Harris in violation of the First Amendment, (c) Gilbert interfered with Harris's right to self-representation in violation of the Sixth and 14th Amendments and article I, section 15 of the California Constitution, (d) Gilbert violated Harris's First Amendment right to send and receive mail, (e) Hinton violated Nelson's 14th Amendment right to due process at his Wilson hearing, and (f) the jail maintained a custom or practice of retaliating against inmates for engaging in protected activity and restricting certain inmates' mail to postcards only and telephone calls to immediate family and no cell phones;
(2) the remainder of Plaintiff's claims against County Defendants are dismissed;
(3) Defendant Allen is dismissed from this lawsuit;
(4) Plaintiffs' request for injunctive relief is denied as moot;
(5) Dismissal of Plaintiffs' claims that they are entitled to injunctive relief and that Defendants violated Nelson's constitutional right to self-representation, violated Plaintiffs' Fifth Amendment right to due process, and unconstitutionally censored Nelson's mail is without leave to amend;
(6) Dismissal of Plaintiffs' other claims against County Defendants is with leave to amend.
IT IS FURTHER ORDERED that Plaintiffs' request for leave to substitute G. Thompson for a Doe Defendant is granted, Defendants County and Hinton's motions for summary judgment are denied without prejudice, Plaintiffs' September 2014 motion to compel is denied without prejudice, and Plaintiffs' motion for appointment of counsel is denied without prejudice.
Within 30 days of the date of this Order, Plaintiffs may file a second amended complaint. Any amended complaint should bear the docket number assigned to this case, be labeled "Second Amended Complaint, " and be complete in and of itself without reference to a previous complaint or any other pleading, attachment, or document. The amended complaint must strictly adhere to the Court's instructions in this Order and its November 13, 2014 Order concerning the City Defendants regarding claims that may proceed or be amended, and it may not name any previously dismissed or new Defendant, reassert any claim that was dismissed with prejudice, or add any new claims. Plaintiffs are reminded of Federal Rule of Civil Procedure's requirement that claims be "short and plain." Moreover, Federal Rule of Civil Procedure 11(a) and Local Rule 11-1 require that an unrepresented party personally sign any pleading or motion filed in this Court. Both Plaintiffs must therefore sign any amended complaint (or sign and file exact copies of the same complaint). The Clerk is directed to provide each Plaintiff with a Central District of California Civil Rights Complaint Form, CV-66, to facilitate their filing of an amended complaint.
Any amended complaint will be subject to screening under 28 U.S.C. §§ 1915(e)(2) and 1915A. If Plaintiffs do not file an amended complaint before the deadline, this case will proceed on the remaining portions of the FAC.
IT IS SO ORDERED.