(PS) Forte v. Merced County, et al., No. 1:2015cv00147 - Document 31 (E.D. Cal. 2016)
Court Description: ORDER Adopting 27 Findings and Recommendations, signed by District Judge Dale A. Drozd on 2/25/16. Amended Complaint Due Within Thirty Days. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EUGENE E. FORTE, 12 13 14 15 No. 1:15-cv-0147-KJM-BAM Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS MERCED COUNTY, et al., (Doc. No. 27) Defendants. 16 17 On August 24, 2015, Plaintiff Euguene Forte filed his first amended complaint in this 18 action seeking relief in connection with alleged constitutional violations against numerous 19 defendants. (Doc. No. 18.) The matter was referred to United States Magistrate Judge Barbara 20 A. McAuliffe pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On January 13, 2016, the assigned Magistrate Judge issued findings and recommendations 22 recommending that plaintiff’s first claim of relief against defendants Merced County, Larry 23 Morse, Mark Pazin, Alan Turner, James Fincher, James Padron, Jerry O’ Banion, Merced County 24 Deputies Chris Jaskowiak, Chris Picinich, Mike Hill, Adam Leuchner, Merced County Sherriff’s 25 Department, Merced County Counsel’s Office, City of Los Banos, LB Chief Gary Brizzee, LB 26 Officer Anthony Parker, McLatchy Newspapers, and Corey Pride be dismissed with prejudice on 27 res judicata grounds. (Doc. No. 27.) The magistrate judge also recommended that the remainder 28 of plaintiff’s complaint be dismissed with leave to amend for failure to state a claim. (Id.) Those 1 1 findings and recommendations were served on plaintiff and contained notice that any objections 2 thereto were to be filed within fifteen days of service of the order. (Id.) On January 29, 2016, 3 plaintiff filed his objections. (Doc. No. 28.) 4 In his objections, plaintiff contends that the assigned magistrate judge erred in referring to 5 his related lawsuit (Forte v. Merced County, Case No. 1:11-cv-318-AWI-BAM (E.D. Cal.) — 6 dismissed with prejudice), while failing to refer to his other lawsuit (Forte v. Merced County, 7 Case No. 1:11-cv-718-AWI-BAM (E.D. Cal.), where the jury awarded what plaintiff 8 characterizes as “rare punitive damages.” (Doc. No. 28 at 3-4.) As noted by the magistrate 9 judge, the court may take notice of facts that are capable of accurate and ready determination by 10 resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United 11 States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The court’s docket is a source whose 12 accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. 13 Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise 14 Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). It was not error for the magistrate judge to refer to previous actions filed by plaintiff1 in 15 16 which he asserted the same causes of action that he has attempted to present in this action in 17 determining whether his instant complaint is barred by res judicata. That plaintiff received a 18 punitive damages award in a different action on a different claim, obviously has no bearing on 19 whether plaintiff’s first claim for relief in the instant complaint is barred by res judicata. 20 Plaintiff’s remaining objections to the findings and recommendations do not address the 21 underlying determination by the assigned magistrate judge that plaintiff’s other claims for relief 22 presented in his instant complaint fail to state cognizable claims and provide no basis upon which 23 to award him the monetary relief he seeks. 24 In accordance with the provisions of Title 28 of the United States Code section 25 636(b)(1)(c), this court has conducted a de novo review of the case. Having carefully reviewed 26 the entire file, the court finds that the findings and recommendations are supported by the record 27 28 1 As acknowledged by plaintiff, he is a frequent litigator in this court. 2 1 and proper analysis. 2 Based upon the foregoing: 3 1. The Findings and Recommendations (Doc. No. 27), filed January 13, 2016, are 4 ADOPTED IN FULL; 2. Plaintiff’s Claim 1 is DISMISSED with prejudice, based upon the res judicata doctrine 5 6 as to defendants Merced County, Larry Morse, Mark Pazin, Alan Turner, James 7 Fincher, James Padron, Jerry O’ Banion, Merced County Deputies Chris Jaskowiak, 8 Chris Picinich, Mike Hill, Adam Leuchner, Merced County Sherriff’s Department, 9 Merced County Counsel’s Office, City of Los Banos, LB Chief Gary Brizzee, LB 10 Officer Anthony Parker, McLatchy Newspapers, and Corey Pride; 11 3. Plaintiff is granted leave to file a second amended complaint within thirty (30) days 12 from the date of service of this order; 13 4. Any second amended complaint plaintiff may elect to file is limited to 25 pages, 14 exclusive of exhibits and will be stricken from the record if it violates this page 15 limitation; and 16 5. If plaintiff fails to file a second amended complaint within the time provided herein, 17 18 19 this action will be dismissed for failure to prosecute and failure to obey a court order. IT IS SO ORDERED. Dated: February 25, 2016 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 3
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