(PS) Winters, et al v. Jordan, et al, No. 2:2009cv00522 - Document 180 (E.D. Cal. 2010)

Court Description: ORDER signed by Judge John A. Mendez on 9/13/10 ORDERING that the Proposed FINDINGS AND RECOMMENDATIONS filed 7/27/10 147 are ADOPTED; Defendant Virginia Armstrong's MOTION to DIMSISS the Third Amended Complaint 84 is GRANTED in part; The Ci vil battery claim alleged on Joy Winters' behalf is DISMISSED without prejudice; All the remaining claims alleged against Virginia Armstrong, except for Plaintiff Christy Winters' civil battery claim (claim 9 and Plaintiffs' breach of contract claim (claim 22) are DISMISSED with prejudice. (Mena-Sanchez, L)
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(PS) Winters, et al v. Jordan, et al Doc. 180 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BRENT ALLEN WINTERS, et al., 11 12 13 Plaintiff, No. CIV-S-09-0522-JAM-KJN-PS vs. DELORES JORDAN, et al., ORDER 14 15 16 Defendants. __________________________________/ On July 27, 2010, the magistrate judge filed findings and recommendations herein which 17 were served on the parties and which contained notice that any objections to the findings and 18 recommendations were to be filed within fourteen days. (Dkt. No. 147.) On August 24, 2010, 19 plaintiffs filed untimely objections to the magistrate judge’s findings and recommendations. 20 (Dkt. No. 165.) Despite the untimely nature of plaintiffs’ objections, the undersigned has 21 considered those objections out of an abundance of caution. 22 This court reviews de novo those portions of the proposed findings of fact to which 23 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 24 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As 25 to any portion of the proposed findings of fact to which no objection has been made, the court 26 assumes its correctness and decides the motions on the applicable law. See Orand v. United 1 Dockets.Justia.com 1 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 2 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 3 1983). 4 5 The court has reviewed the applicable legal standards and, good cause appearing, concludes that it is appropriate to adopt the Proposed Findings and Recommendations in full. 6 Accordingly, IT IS ORDERED that: 7 1. The Proposed Findings and Recommendations filed July 27, 2010 (Dkt. No. 147), are 8 ADOPTED; 9 10 2. Defendant Virginia Armstrong’s motion to dismiss the Third Amended Complaint (Dkt. No. 84) is granted in part; 11 12 13 3. The civil battery claim alleged on Joy Winters’s behalf is dismissed without prejudice; and 4. All the remaining claims alleged against Virginia Armstrong, except for plaintiff 14 Christy Winters’s civil battery claim (claim 9) and plaintiffs’ breach of contract claim (claim 22), 15 are dismissed with prejudice. 16 DATED: September 13, 2010 17 18 /s/ John A. Mendez UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 2