Plascencia v. County of Kings, et al., No. 1:2014cv00441 - Document 21 (E.D. Cal. 2014)

Court Description: ORDER ADOPTING 16 FINDINGS AND RECOMMENDATIONS re Motions to Dismiss (Docs. 4 , 5 , 6 , 7 ) signed by District Judge Lawrence J. O'Neill on 5/28/2014. Amended Complaint due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PEDRO CRUZ PLASCENCIA, Plaintiff, 12 13 Case No. 1:14-cv-00441-LJO-SAB ORDER ADOPTING FINDINGS AND RECOMMENDATIONS v. (ECF Nos. 4, 5, 6, 7, 13, 14, 15, 16) 14 15 COUNTY OF KINGS, et al., Defendants. 16 17 Plaintiff Pedro Cruz Plascencia filed the complaint in this action in the Kings County 18 Superior Court on November 18, 2013, against Defendants County of Kings, Kings County 19 Sheriff’s Department, City of Hanford, and Hanford Police Department alleging excessive force 20 and failure to provide medical attention in violation of the Fourth and Fourteenth Amendments 21 and negligence under state law. (ECF No. 1-1.) On March 26, 2014, Defendants removed this 22 action to the Eastern District of California. (ECF No. 1.) Defendants County of Kings and 23 Kings County Sheriff’s Department filed a motion to dismiss on April 1, 2014. (ECF No. 4.) 24 Defendants City of Hanford and Hanford Police Department filed a motion to dismiss on April 2, 25 2014. (ECF Nos. 5-7.) The motions to dismiss were referred to a United States Magistrate 26 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. (ECF Nos. 17, 18.) 27 On May 7, 2014, the Magistrate Judge filed a Findings and Recommendations which was 28 served on the parties and contained notice that any objections to the Findings and 1 1 Recommendations were to be filed within fourteen days. More than fourteen days have passed 2 and no objections have been filed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 4 a de novo review of this case. Having carefully reviewed the entire file, the Court finds the 5 Findings and Recommendations to be supported by the record and by proper analysis. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The Findings and Recommendations, filed May 7, 2014, are adopted in full; 8 2. County Defendants’ motion to dismiss, filed April 2, 2014, is GRANTED; 9 3. City Defendants’ motion to dismiss filed April 2, 2014, is GRANTED IN PART 10 AND DENIED IN PART as follows; 11 a. Defendants’ motion to dismiss the second cause of action is GRANTED; and 12 b. Defendants’ motion to dismiss the section 1983 claim on the ground that Plaintiff 13 failed to comply with the California Tort Claim Act is DENIED; 14 4. Plaintiff’s complaint is dismissed; 15 5. Within fourteen days from the date of service of this order, Plaintiff shall file an 16 17 amended complaint; and 6. 18 Failure to file an amended complaint in compliance with this order will result in this action being dismissed. 19 20 21 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill May 28, 2014 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 2

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