Opinion
Case No. CV 12-1351 R(JC)
03-10-2014
JESSIE JEFFRIES, Plaintiff, v. K. FIELDS, et al., Defendant(s).
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all documents filed in connection with the Motion to Dismiss Portions of First Amended Complaint ("Defendants' Motion") filed/joined by defendants K. Fields ("Fields"), C. Grigg ("Grigg"), L. VanSandt ("VanSandt"), G. Smith ("Smith") and the United States of America ("United States") (collectively "defendants"), and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"). The Court approves and accepts the Report and Recommendation. The Court herein refers to the claims in the First Amended Petition by the same shorthand terms used and defined by the Magistrate Judge in the Report and Recommendation.
IT IS HEREBY ORDERED: (1) Claim 3 is dismissed as against defendant Fields and is deemed a Federal Tort Claims Act ("FTCA") claim against the United States; (2) Defendants' Motion is granted in part and denied in part, specifically: (a) Defendants' Motion is granted to the extent it is predicated upon plaintiff's failure to exhaust his administrative remedies as to Claim 1a1 against defendant Grigg and such claim is dismissed without prejudice; (b) Defendants' Motion is denied to the extent it is predicated upon plaintiff's failure to exhaust his administrative remedies as to Claim 1d2b against defendant Smith; (c) Defendants' Motion is granted to the extent it seeks dismissal of the following claims for failure to state a claim and such claims are dismissed with leave to amend: Claim 1a2 against defendant Grigg, Claim 1c against defendant VanSandt, and Claim 1d against defendant Smith; (d) Defendants' Motion is denied to the extent it seeks dismissal of Claim 1b against defendant Fields for failure to state a claim; and (e) Defendants' Motion is granted to the extent it seeks dismissal of Claim 3 without prejudice for lack of subject matter jurisdiction; (3) plaintiff, to the extent he has been afforded leave to amend and can cure the deficiencies identified herein, shall file any Second Amended Complaint within twenty (20) days; (4) plaintiff is advised that the failure timely to file a Second Amended Complaint will result in this action proceeding solely on the remaining claims as against the remaining defendant (i.e., the First Amendment retaliation and the Eighth Amendment excessive force claims - Claims 1b and 2 - against defendant Fields) absent further order of the Court; and (5) the Clerk shall provide plaintiff with a Central District of California Civil Rights Complaint Form to facilitate plaintiff's filing of a Second Amended Complaint if he elects to proceed in that fashion.
Any Second Amended Complaint must: (a) be labeled: "Second Amended Complaint;" (b) be complete in and of itself and not refer in any manner to the original Complaint or the First Amended Complaint; (c) contain a "short and plain" statement of the claims for relief. See Fed. R. Civ. P. 8(a); (d) make each allegation "simple, concise and direct." Fed. R. Civ. P. 8(d)(1); (e) make allegations in numbered paragraphs, "each limited as far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b); (f) set forth clearly the sequence of events giving rise to the claim(s) for relief; (g) not include unexhausted claims; and (h) not add defendants or claims without leave of court.
In the event plaintiff elects not to file a Second Amended Complaint and to proceed only on the remaining claims - the First Amendment retaliation and Eighth Amendment excessive force claims against defendant Fields (Claims 1b and 2) - he may expedite matters by filing a Notice of Intent Not to File Second Amended Complaint within twenty (20) days.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Report and Recommendation on plaintiff and counsel for defendants.
IT IS SO ORDERED
DATED: March 10, 2014
/s/_________
HONORABLE MANUEL L. REAL
UNITED STATES DISTRICT JUDGE