-GSA (PC) Fresquez v. Moeroyk, et al, No. 1:2004cv05123 - Document 79 (E.D. Cal. 2011)
Court Description: FINDINGS And RECOMMENDATIONS, Recommending That Plaintiff's Motion For Default Judgment Be Denied, And The Amended Complaint Be Dismissed For Failure To State A Claim, With Leave To Amend (Doc. 64 ), Objections, If Any, Due In 30 Days, signed by Magistrate Judge Gary S. Austin on 6/13/2011. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 7/18/2011. (Fahrney, E)
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-GSA (PC) Fresquez v. Moeroyk, et al Doc. 79 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LOUIS RICHARD FRESQUEZ, 11 Plaintiff, 12 13 1:04-cv-05123-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT BE DENIED, AND THE AMENDED COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (Doc. 64.) v. LIEUTENANT PIETER MOERDYK, 14 Defendant. 15 OBJECTIONS, IF ANY, DUE IN 30 DAYS / 16 17 This is a civil action in which the Clerk of the Court previously entered default against 18 defendant Lieutenant Pieter Moerdyk. Plaintiff now seeks the entry of a default judgment in 19 Plaintiff’s favor. 20 I. BACKGROUND 21 Louis Richard Fresquez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis in this civil rights action alleging that prison officials violated the Americans with 23 Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). Plaintiff filed this action on March 11, 24 2003, in the Northern District of California. On March 18, 2003, Plaintiff filed an Amended 25 Complaint. The case was subsequently transferred to this Court and received on January 20, 2004. 26 (Doc. 1.) 27 On May 30, 2006, this case was dismissed in its entirety for failure to state a claim. (Doc. 28 24.) Plaintiff appealed the Court’s decision to the Ninth Circuit Court of Appeals, and on August 1 Dockets.Justia.com 1 4, 2008, the case was remanded for further proceedings.1 (Docs. 26, 37.) On July 8, 2009, the Court 2 directed the United States Marshal to serve process on defendants Lieutenant (“Lt.”) Moerdyk and 3 Correctional Officer (“C/O”) Mata. (Doc. 42.) Defendant Moerdyk was served with a summons and 4 a copy of the complaint on May 7, 2010. (Doc. 58.) Service upon defendant Mata was unsuccessful, 5 and defendant Mata was dismissed from this action on February 8, 2011. (Doc. 73.)2 6 On September 24, 2010, Plaintiff filed a motion for entry of default against defendant 7 Moerdyk. (Doc. 61.) Defendant Moerdyk did not respond to Plaintiff’s motion or make any other 8 appearance in this action, and default was entered by the Clerk on September 27, 2010. (Doc. 63.) 9 On October 12, 2010, Plaintiff filed a motion for default judgment against defendant Moerdyk. 10 (Doc. 64.) To date, defendant Moerdyk has not responded to Plaintiff’s motion or made any other 11 appearance in this action. On December 1, 2010, the Court issued an order for Plaintiff to submit 12 evidence of the damage amount requested against defendant Moerdyk, pursuant to Rule 55(b)(2). 13 (Doc. 69.) On February 3, 2011, Plaintiff filed a declaration in support of the motion for default 14 judgment. (Doc. 72.) On February 25, 2011, Plaintiff filed requests for declaratory and injunctive 15 relief. (Docs. 76, 77.) 16 17 Plaintiff’s motion for default judgment is now before the Court. II. PLAINTIFF'S ALLEGATIONS IN THE AMENDED COMPLAINT 18 At the time of the events at issue, Plaintiff was a state prisoner incarcerated at the California 19 Substance Abuse Treatment Facility and State Prison in Corcoran, California. Plaintiff names Lt. 20 Moerdyk and C/O Mata3 as defendants. Plaintiff alleges as follows in the Amended Complaint. 21 On December 3, 2002, C/O Mata issued a CDC 115 Rules Violation Report (“RVR”) against 22 Plaintiff for using the bathroom after the 5:00 p.m. count was taken and the guards were waiting for 23 1 24 25 The Ninth Circuit held that the “district court properly dismissed Fresquez’s claims that implicated the invalidity of a disciplinary conviction which resulted in lost good-time credits” but held that “Fresquez’s remaining allegations concerning the conditions of his confinement are independent of his disciplinary conviction and should not have been dismissed under 28 U.S.C. § 1915A.” (Doc. 37 at 2.) 26 27 2 As a result of the dismissal of defendant Mata, defendant Moerdyk is the only defendant remaining in this action. 3 28 Plaintiff identified this defendant as “Maka” in the Amended Complaint. However, Plaintiff corrected the spelling to “Mata” when he completed documents to initiate service of process. 2 1 clearance from Sacramento. The charges against Plaintiff in the RVR were contrary to institutional 2 policy and the ADA. In issuing the RVR, C/O Maka discriminated against Plaintiff, knowing that 3 Plaintiff is deaf, vision impaired, and mobility impaired. 4 On December 17, 2002, a disciplinary hearing was held to address Plaintiff’s RVR. Lt. 5 Moerdyk officiated over the hearing. Before the hearing, Lt. Moerdyk asked Plaintiff if he would 6 agree to have the hearing without the assistance of a sign language interpreter. Plaintiff agreed, 7 stating he was willing to participate in writing. During the course of the hearing, C/O Mata had 8 several conversations with Lt. Moerdyk which Plaintiff, being deaf, could not hear or participate in. 9 The officers were obviously talking about Plaintiff, but Plaintiff did not know what they were saying 10 and was unable to take part. Plaintiff pled not guilty of being off his bed during the count, and gave 11 Lt. Moerdyk several memorandums about institutional policy regarding the use of the bathroom after 12 the count. Lt. Moerdyk highlighted one section of the memorandums, proceeded to have another 13 discussion with C/O Mata, and found Plaintiff guilty of violating CCR 3017, for the specific act of 14 being off his assigned bunk during the count. As such, Lt. Moerdyk deliberately ignored institutional 15 policy and chose to play favors. 16 Plaintiff asserts he was not off his bunk during the count, and he could not hear the 17 announcements over the Public Address (P.A.) system which C/O Mata said she made. Plaintiff 18 maintains that announcements over the P.A. system are part of a sadistic trend to deprive disabled 19 inmates of the use of the bathroom. C/O Mata announced there would be no movement until the 20 count was clear. This announcement is against institutional policy which states that movement is 21 allowed with permission. C/O Mata would not give permission or acknowledge any requests after 22 making this announcement. C/O Mata knew that Plaintiff is deaf and that there were other deaf 23 inmates in the building. C/O Mata’s conduct demonstrates her hatred for deaf inmates. 24 Plaintiff filed a CDC form-1824 Reasonable Modification Request regarding the use of the 25 bathroom, which was processed from the informal level to the Director’s Level of review. Plaintiff 26 was granted a rehearing of the CDC-115 RVR. 27 Plaintiff also alleges that the guards in Building 3 do not have a policy, practice, or procedure 28 for deaf inmates to get their attention when needed. Plaintiff has been threatened with a CDC-115 3 1 RVR for trying to get the guards’ attention; he has been waved away from the gate; and he has been 2 threatened by guards who place their hands on cans of mace. There is no means of notifying deaf 3 inmates when a count is being taken. There is no means for deaf inmates to hear what is being 4 announced over the P.A. system. The guards make announcements over the P.A. system and then 5 threaten deaf inmates when they do not comply with what was announced. Past memorandums 6 establishing a procedure for communication with the deaf are ignored. Guards call deaf inmates over 7 the P.A. system and get angry when they do not respond. As a result, Plaintiff and other deaf 8 inmates do not get their mail when other inmates get theirs; they miss appointments with other 9 employees who call the building for them; and they are generally left out. 10 Plaintiff requests monetary damages and injunctive relief. 11 III. MOTION FOR DEFAULT JUDGMENT 12 A. 13 Pursuant to the Federal Rules of Civil Procedure, a defendant must serve an answer within 14 21 days of being properly served with a summons and complaint. Fed. R. Civ. P. 12(a)(1)(A)(I). 15 If a defendant fails to do so, a default judgment may be entered pursuant to Rule 55(a) of the Federal 16 Rules of Civil Procedure. Rule 55(a) provides that “[w]hen a party against whom a judgment for 17 affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by 18 affidavit or otherwise, the clerk must enter the party's default.” Fed. R. Civ. P. 55(a). Legal Standard 19 However, even if entry of default has been made by the court clerk, granting a default 20 judgment is not automatic. Pepsi Co, Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D.Cal. 21 1999); see GMAC Commercial Mortg. Corp. v. Maitland Hotel Assoc., 218 F.Supp.2d 1355, 1359 22 (M.D.Fla. 2002) (finding that “mere entry of default by clerk does not in itself warrant entry of 23 default judgment”). Instead, “[t]he [Court's] decision whether to enter a default judgment is a 24 discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980); see Duling v. Markun, 25 231 F.2d 833, 836 (7th Cir. 1956). Using this discretion, the Court must find a “sufficient basis in 26 the pleadings” for a default judgment to be entered. GMAC, 218 F.Supp.2d at 1359 (citing 27 Nishimatsu Const. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). 28 /// 4 1 When choosing to grant or deny entry of a default judgment, the court considers several 2 factors, such as the possibility of prejudice to the plaintiff, the substantive merits of the plaintiff's 3 claim, the sufficiency of the complaint, the amount of money at stake, the possibility of prejudice 4 to plaintiff if relief is denied, whether default was the result of excusable neglect, and the strong 5 policy of the Federal Rules that favors decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 6 1471-72 (9th Cir.1986). In considering the Eitel factors, the court takes all factual allegations in the 7 plaintiff’s complaint as true, except for those relating to damages. TeleVideo Sys., Inc. v. 8 Heidenthal, 826 F.2d 915, 917 (9th Cir.1987). 9 Although default judgments are more often granted than denied under this discretionary 10 standard, default judgment is not appropriate when the complaint fails to state a claim. GMAC, 218 11 F.Supp.2d at 1359 (citing Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370, n. 41 (11th Cir. 12 1997)). This is because entry of a default judgment effectively renders the plaintiff's well-pleaded 13 allegations as non-disputed facts. GMAC, 218 F.Supp.2d at 1359. It also bars the defendant from 14 contesting those facts on appeal. Id. (citing Buchanan v. Bowman, 820 F.2d 359, 361 (11th 15 Cir.1987)). 16 B. 17 Plaintiff requests the entry of a default judgment against defendant Lt. Moerdyk, for 18 Plaintiff's Motion discriminating against him in violation of the ADA and RA. 19 In support of his motion, Plaintiff first asserts that he (Plaintiff) is disabled within the 20 meaning of the ADA because he was classified as D.P.P. (Disabled Placement Program) at Solano 21 State Prison based on his deafness. (Fresquez Decl., Doc. 72 at 4). Plaintiff also asserts that he is 22 forced to wear a yellow vest with "Hearing Impaired" stenciled on the back of the vest. (Id.) 23 Plaintiff requests an award including the following: 24 (1) 25 disciplinary hearing is void and must be restored; 26 (2) 27 28 Declaration that his thirty-day loss of good time credits at the unconstitutional Declaration that the unconstitutional application of multiple punishments for one offense was illegal and contrary to the ADA; /// 5 1 (3) Declaration of the due process rights of communication to all deaf inmates; 2 (4) Injunction requiring the prison to provide sign language interpreters or written 3 communication in all due process hearings/sessions, including CDC-115 disciplinary 4 hearings; 5 (5) Declaration that deaf inmates have the right to choose the type of communication 6 provided, per the Code of Federal Regulations and Captain Frazer's Memorandum 7 entitled "Communications With Deaf Inmates;" 8 (6) 9 Injunction requiring that deaf inmates will be provided copies of all written communications; 10 (7) 11 Injunction incorporating Captain Frazer's Memorandum "Communications with Deaf Inmates" into policy and Title 15; 12 (8) 13 Injunction requiring the prison to follow the Code of Federal Regulations that were promulgated to enforce the ADA in communication with deaf inmates; 14 (9) 15 Injunction requiring the prison to insure that deaf inmates are given due process rights in communications with prison officials at all due process hearings; and 16 (10) Attorney's fees in the amount of $6,000.00. 17 In support of his requests for relief against defendant Lt. Moerdyk, Plaintiff argues that Lt. 18 Moerdyk knew that he acted in violation of Title 15, CDC mandates, and the ADA, because all of 19 the employees at the prison are aware that hearing-impaired inmates are present the prison, and every 20 employee is given training sessions on how to communicate with hearing-impaired inmates. (Id.) 21 at 5-6. Plaintiff declares that Lt. Moerdyk intentionally treated him as if he were not important 22 enough to talk to, and forced Plaintiff to re-live over sixty years of discrimination he has endured 23 based on his deafness. Lt. Moerdyk talked over and around Plaintiff, ignoring him and talking to 24 C/O Mata while Plaintiff sat in front of him. (Id. at 6.) Plaintiff submits evidence of the laws, 25 regulations, and rules governing the treatment of disabled inmates. 26 Declaration, Doc. 72 at pp 8-73.) Plaintiff also requests a trial to determine the amount of damages 27 he is entitled to in this action. (Id. at 7.) 28 /// 6 (Exhibits to Fresquez 1 IV. DISCUSSION 2 Plaintiff has satisfied the Rule 55 requirements for to entry of default against defendant 3 Moerdyk. On July 8, 2009, the Court directed the United States Marshal to serve process on 4 defendants Moerdyk and Mata. (Doc. 42.) Defendant Moerdyk was served with a summons and 5 copy of the complaint on May 7, 2010. (Doc. 58.) Defendant Moerdyk did not file any response to 6 the complaint, and on September 24, 2010, Plaintiff filed a motion for entry of default against 7 defendant Moerdyk. (Doc. 61.) The Clerk entered default against defendant Moerdyk on September 8 27, 2010. (Doc. 63.) On October 12, 2010, Plaintiff filed the present motion for a default judgment 9 against defendant Moerdyk. (Doc. 64.) To date, defendant Moerdyk has not responded to the 10 motion or made any other appearance in this action. Based on this evidence, Plaintiff's motion for 11 a default judgment is properly before the Court. 12 The Court now considers whether Plaintiff states a claim against defendant Moerdyk in the 13 Amended Complaint. In considering Plaintiff's motion for default judgment, the Court takes all of 14 the factual allegations in Plaintiffs' Amended Complaint as true. TeleVideo Sys., Inc., 826 F.2d at 15 917. Plaintiff fashioned the Amended Complaint as a complaint for relief under the Americans with 16 Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”).4 17 whether Plaintiff states any claims under the ADA or RA against defendant Moerdyk. Therefore, the Court considers 18 ADA and RA Claims - Legal Standard 19 Title II of the ADA provides that “no qualified individual with a disability shall, by reason 20 of such disability, be excluded from participation in or denied the benefits of the services, programs, 21 or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 22 12132. Because Title II of the ADA was modeled after § 504 of the Rehabilitation Act of 1973, 23 “[t]here is no significant difference in analysis of the rights and obligations created by the ADA and 24 /// 25 4 26 27 28 “As [the Ninth Circuit] held in Bogovich v. Sandoval, when a prisoner's complaint ‘asserts only, and details facts related to, potential ADA violations,’ the district court errs in characterizing the suit as a § 1983 claim.” O'Guinn v. Lovelock Correctional, 502 F.3d 1056, 1060 (9th Cir. 2007) (quoting Bogovich v. Sandoval, 189 F.3d 999, 1001 (9th Cir. 1999)). “ ‘[C]ourts should not undertake to infer one cause of action when a complaint clearly states a claim under a different cause of action. The party who brings a suit is master to decide what law he will rely upon.’ ” Id. 7 1 the Rehabilitation Act.” Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045, n. 11 (9th Cir. 2 1999); see Coons v. Sec’y of the United States Treas., 383 F.3d 879 (9th Cir. 2004). 3 “In order to state a claim under Title II of the ADA, a plaintiff must allege: 4 7 (1) he ‘is an individual with a disability;’ (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) ‘such exclusion, denial of benefits, or discrimination was by reason of [his] disability. ’ ” 8 O'Guinn, 502 F.3d at 1060 (quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.2004 9 and Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002) (per curiam)). “Similarly, to state a claim 10 under the Rehabilitation Act, a plaintiff must allege (1) he is an individual with a disability; (2) he 11 is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by 12 reason of his disability; and (4) the program receives federal financial assistance.” O’Guinn at 1060 13 (citing Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir.2001)). 5 6 14 Plaintiff's Claims in the Amended Complaint 15 Plaintiff asserts that he is deaf, vision-impaired, and mobility-impaired, and he produces 16 evidence in the form of health records to demonstrate that he possesses disabilities within the 17 meaning of the ADA and RA. (Amd Cmpl at 2-5.) Thus, Plaintiff has demonstrated that he is a 18 qualified individual with a disability within the meaning of the ADA and RA. 19 Individual Liability 20 Plaintiff fails to state a claim in the Amended Complaint for individual liability against either 21 defendant Moerdyk or defendant Maka. Individual liability is precluded under Title II of the ADA, 22 and any claim Plaintiff might intend to make under the ADA or RA against defendants as 23 individuals, is not cognizable. To be cognizable, an ADA claim must be brought for discrimination 24 by a "public entity." The ADA defines public entity” in relevant part as “any State or local 25 government” or “any department, agency, special purpose district, or other instrumentality of a State 26 or States or local government.” 42 U.S.C. § 12131(1)(A)-(B). “The term ‘public entity’ does not 27 include individuals.” Shaughnessy v. Hawaii, No. 09-00569 JMS/BMK, 2010 WL 2573355, at *8 28 (D.Hawai’i Jun. 24, 2010) (quoting Hardwick v. Curtis Trailers, Inc., 896 F.Supp. 1037, 1038-39 8 1 (D.Or.1995) (finding that individual liability is precluded under ADA Title II) (citing Miller v. 2 Maxwell's Int'l, Inc., 991 F.2d 583 (9th Cir.1993)); see also Vinson v. Thomas, 288 F.3d 1145, 1156 3 (9th Cir. 2002). Plaintiff may name the appropriate entity or state officials in their official capacities, 4 but he may not name individual prison employees in their personal capacities. Shaughnessy, 2010 5 WL 2573355 at *8; Anaya v. Campbell, No. CIV S-07-0029 GEB GGH P, 2009 WL 3763798, at 6 *5-6 (E.D.Cal. Nov. 9, 2009); Roundtree v. Adams, No. 1:01-CV-06502 OWW LJO, 2005 WL 7 3284405, at *8 (E.D.Cal. Dec. 1, 2005). Therefore, Plaintiff fails to state any ADA or RA claims 8 against C/O Mata or Lt. Moerdyk in their individual capacities. 9 Conviction at Disciplinary Hearing 10 Plaintiff requests relief with regard to his conviction at the disciplinary hearing. Plaintiff 11 requests a court order reversing his loss of thirty days good time credits and changing his release date 12 back to the date established on October 5, 1994; damages to compensate him for the privileges he 13 lost as a result of the conviction; and damages for Lt. Moerdyk's conduct at the hearing. Plaintiff’s 14 claims implicating the invalidity of his disciplinary conviction, which resulted in lost good-time 15 credits, were previously dismissed from this action on May 30, 2006, and on appeal the Ninth Circuit 16 affirmed the dismissal of these claims. (Docs. 20, 37.) Plaintiff’s only remedy for these claims is 17 a petition for writ of habeas corpus, unless he demonstrates that the conviction was reversed. Preiser 18 v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 19 S.Ct. 1090 (1991); Heck v. Humphrey, 512 U.S. 477, 487 (1994); Edwards v. Balisok, 520 U.S. 20 641, 646 (1997). Therefore, Plaintiff fails to state any claim with regard to his conviction at the dise 21 disciplinary hearing. 22 Conditions of Confinement 23 Plaintiff alleges that the guards in Building 3 do not have a policy, practice, or procedure for 24 deaf inmates to get their attention when needed, resulting in threats and punishments against Plaintiff 25 and other deaf inmates for not complying with announcements made over the P.A. system or other 26 verbal instructions. Plaintiff also alleges that as a result of the lack of a policy, practice, or 27 procedure, he and other deaf inmates do not get their mail when other inmates get theirs; they miss 28 appointments with other employees who call the building for them; and they are generally left out. 9 1 Plaintiff may be able to state a claim under the ADA and RA for these conditions of his 2 confinement. However, Plaintiff has not named a proper defendant.5 Title II of the ADA prohibits 3 discriminatory activities by public entities and defines "public entity” in relevant part as “any State 4 or local government” or “any department, agency, special purpose district, or other instrumentality 5 of a State or States or local government.” 42 U.S.C. §§ 12132, 12131(1)(A)-(B).6 Because Plaintiff 6 may be able to state a claim, he should be granted leave to amend his ADA and RA claims 7 concerning conditions of confinement.7 8 Request for Trial 9 Plaintiff requests a trial to determine the appropriate amount of damages he is entitled to in 10 this action. A trial, or court hearing, for Plaintiff to present evidence in support of his motion for 11 default judgment shall be denied. Under Local Rules, “[a]ll motions, except motions to dismiss for 12 lack of prosecution, filed in cases wherein one party is incarcerated and proceeding in propria 13 persona, shall be submitted upon the record without oral argument unless otherwise ordered by the 14 Court.” Local Rule 230(l). Such motions are not noticed on the motion calendar, and the parties do 15 not appear in open court to resolve such motions. Id. The Court finds no good cause to order oral 16 argument on Plaintiff’s motion for default judgment. Therefore, Plaintiff’s request for a court 17 hearing at this stage of the proceedings is denied. 18 V. CONCLUSION AND RECOMMENDATIONS 19 The Court finds that Plaintiff’s Amended Complaint fails to state any cognizable claim 20 against defendant Lt. Pieter Moerdyk upon which relief may be granted. Therefore, Plaintiff's 21 motion for default judgment against defendant Lt. Moerdyk must be denied. 22 23 24 5 As discussed above at page 8, Plaintiff cannot state an ADA or RA claim against defendants in their individual capacities. 6 25 26 27 28 As discussed above, “[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act.” Zukle, 166 F.3d at 1045, n. 11; see Coons, 383 F.3d 879. 7 On appeal of the Court's May 30, 2006 decision in this action, the Ninth Circuit held that "Fresquez's [] allegations concerning the conditions of his confinement are independent of his disciplinary conviction and should not have been dismissed under 28 U.S.C. § 1915A. See Bogovich, 189 F.3d at 1002 (finding disabled prisoner's ADA and RA claims relating to the conditions, rather than duration or validity, of confinement are not Heckbarred)." (Doc. 37 at 2.) 10 1 The Court also finds that Plaintiff may be able to state a claim for violation of the ADA and 2 RA with respect to conditions of his confinement. Therefore, the Amended Complaint should be 3 dismissed with leave to file a Second Amended Complaint curing the deficiencies identified above. 4 Fed. R. Civ. P. 15(a); Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir.2000). 5 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 6 1. 7 October 12, 2010, be DENIED; and 8 9 10 Plaintiff's motion for default judgment against defendant Lt. Moerdyk, filed on 2. Plaintiff's Amended Complaint, filed on May 18, 2003, be DISMISSED for failure to state a claim, with leave to file a Second Amended Complaint curing the deficiencies discussed above. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days 13 after being served with these findings and recommendations, Plaintiff may file written objections 14 with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings 15 and Recommendations." Plaintiff is advised that failure to file objections within the specified time 16 may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 17 1991). 18 19 IT IS SO ORDERED. 20 Dated: 6i0kij June 13, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 11
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