Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Foley v. Kaldenbach

United States District Court, S.D. California

March 13, 2017

GREGORY D. FOLEY, Plaintiff,
v.
COREY KALDENBACH, et al., Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION [Doc. No. 79] AND PROVIDING PLAINTIFF WITH SPECIFIC INSTRUCTIONS REGARDING FURTHER PROCEEDINGS

          Hon. Cathy Ann Bencivengo United States District Judge

         REPORT AND RECOMMENDATION

         On April 18, 2016, Plaintiff Gregory D. Foley filed a first amended complaint. [Doc. No. 28.] On August 31, 2016, Defendant City of Oceanside filed a motion to dismiss. [Doc. No. 46.] On November 16, 2016 Defendant Ronald Nevares filed a motion to dismiss. [Doc. No. 60.] On November 17, 2016, Plaintiff filed a motion to amend the complaint. [Doc. No. 62.] Finally, on November 28, 2016, Plaintiff filed a motion for default judgment. [Doc. No. 66.]

         On January 30, 2017, Magistrate Judge Andrew G. Schopler prepared a Report and Recommendation (“Report”) recommending that Plaintiff's motion to amend be granted, Plaintiff's motion for default judgment be denied, Defendant City of Oceanside's motion to dismiss be denied as moot, and Defendant Nevares' motion to dismiss be denied as moot. [Doc. No. 79.] The Report also ordered that any objections were to be filed within the time limits set forth in Federal Rule of Civil Procedure 72. [Report at 3.] To date, while Plaintiff has filed several other documents, no objection has been filed, nor have there been any requests for an extension of time in which to file an objection.

         A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.” Id. In the absence of timely objection, the Court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72 advisory committee's note (citing Campbel v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

         Here, neither party has timely filed objections to the Report. Having reviewed it, the Court finds that it is thorough, well-reasoned, and contains no clear error. Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Schopler's Report and Recommendation [Doc. No. 79]; (2) GRANTS Plaintiff's motion to amend [Doc. No. 62]; (3) DENIES Plaintiff's motion for default judgment [Doc. No. 66]; (4) DENIES AS MOOT Defendant City of Oceanside's motion to dismiss [Doc. No. 46]; and (5) DENIES AS MOOT Defendant Nevares' motion to dismiss [Doc. No. 60].

         INSTRUCTIONS TO PLAINTIFF AS TO HOW TO PROCEED

         A. Background

         On July 14, 2015, Plaintiff filed the original complaint which named the following defendants: City of Oceanside, Oceanside Police Department, and Does 1-12. The complaint was filed on a form provided for state prisoners suing under 42 U.S.C. §1983. The original complaint also contained factual allegations. [See Doc. No. 1.] On November 20, 2015, the Court granted Plaintiff's motion to amend to substitute a named defendant for a Doe defendant. [Doc. No. 18.] Plaintiff was instructed that, if he wanted to add the named defendants, he needed to file an Amended Complaint by December 21, 2015, that named all the defendants and contained sufficient “factual matter” to show: (1) how and why he believes his constitutional rights were violated; and (2) what each individual Defendant did to cause him injury. [Doc. No. 18 at 6-7.]

         December 21, 2015, came and went, but Plaintiff did not file an Amended Complaint. On February 9, 2016, however, Plaintiff filed a motion requesting the issuance of a summons and U.S. Marshal Service. [Doc. No. 23.] Therefore, the Court assumed Plaintiff wanted to stand on his original complaint and conducted its mandatory screening of that pleading pursuant to 28 U.S.C. §§1915e(2) and 1915A before determining whether U.S. Marshal service was warranted. The Court determined that Defendant Oceanside Police Department is not subject to suit under Section 1983 and therefore dismissed that defendant from the action. [Doc. No. 25.] The Court then ordered the U.S. Marshal to serve the complaint on the City of Oceanside, which was the only defendant in the action at that time. Thus, at this point, the original complaint was still the operative complaint, but with only one defendant.

         On April 18, 2016, Plaintiff filed a motion to amend the complaint [Doc. No. 29] as well as what appeared to be a proposed First Amended Complaint (“FAC”). [Doc. No. 28]. On September 14, 2016, Magistrate Judge Ruben Brooks granted the motion to amend and deemed the FAC to be the operative pleading. [Doc. No. 49 at 1.] Upon further review, however, it is apparent that the FAC is NOT a viable complaint. First, the FAC appears to name the individual defendants, but it omits the City of Oceanside as a defendant.[1] In addition, the FAC does not contain ANY factual allegations. Instead, it merely attaches a proposed summons for each individual defendant. It also has no identifiable claims and no prayer for relief. The FAC is simply not a viable complaint and is therefore DISMISSED without prejudice.

         Plaintiff is ADVISED that, at this point in time, there is NO operative complaint in this action. However, Plaintiff will be given one FINAL opportunity to file a Second Amended Complaint as set forth below.

         B. Recent Filings by Plaintiff

         After Judge Schopler issued the Report, Plaintiff filed several additional documents. [Doc. Nos. 81, 83 and 85.] One of the documents is 79 pages long, appears to be a motion requesting leave to file a Second Amended Complaint, and even references a “Second amended complaint for defendants . . . .as per ordered by the court in, Report and Recommendation.” [Doc. No. 83 at 1.] However, in 79 pages, there is nothing that resembles a Second Amended Complaint. Rather, it appears to be a narrative of past events as well as a discussion of the current litigation; it also provides occasional legal citations, and attaches some police reports from the underlying event. However, it ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.