-KJN (PS) Winters, et al v. Jordan, et al, No. 2:2009cv00522 - Document 326 (E.D. Cal. 2012)

Court Description: ORDER adopting 311 FINDINGS AND RECOMMENDATIONS, signed by Judge John A. Mendez on 3/9/12. Defendant Delores Jordans motion to dismiss 257 ) is GRANTED in part and DENIED in part. Defendant David Silber's motion to dismiss 258 is GRANTED. All of plaintiffs' claims alleged against Silber are dismissed with prejudice, and Silber is dismissed from this action. Plaintiffs' motion for default judgment 189 is DENIED as to defendant Delores Jordan. (Kastilahn, A) (Kastilahn, A)
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-KJN (PS) Winters, et al v. Jordan, et al Doc. 326 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BRENT ALLAN WINTERS, et al., 11 12 Plaintiffs, No. CIV-S-09-0522-JAM-KJN-PS vs. 13 DELORES JORDAN, et al., 14 Defendants. __________________________________/ ORDER 15 16 On February 2, 2012, the magistrate judge filed findings and recommendations herein 17 which were served on the parties and which contained notice that any objections to the findings 18 and recommendations were to be filed within fourteen days (Dkt. No. 311). Although no party 19 filed timely objections to the findings and recommendations, plaintiffs filed untimely objections 20 to those findings and recommendations on March 2, 2012 (Dkt. No. 319). Despite the untimely 21 nature of plaintiffs’ objections, the court has considered those objections out of an abundance of 22 caution. 23 This court reviews de novo those portions of the proposed findings of fact to which an 24 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 25 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 26 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 1 Dockets.Justia.com 1 findings of fact to which no objection has been made, the court assumes its correctness and 2 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 3 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 4 Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). 5 6 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. 7 Accordingly, IT IS ORDERED that: 8 1. The Proposed Findings and Recommendations filed February 2, 2012, are ADOPTED. 9 2. Defendant Delores Jordan’s motion to dismiss (Dkt. No. 257) is granted in part and 10 denied in part. Specifically, the following claims shall proceed: 11 12 a. Plaintiffs’ seventh claim for relief (violation of rights of Equal Protection), only to the extent that it is alleged by plaintiff Susan Winters against defendant Delores Jordan; 13 b. Plaintiffs’ ninth claim for relief (civil battery), only to the extent that it is 14 alleged by plaintiffs Susan, Cacey, Christy, and Jennifer Winters against defendant Delores 15 Jordan; 16 c. Plaintiffs’ tenth claim for relief (civil assault), only to the extent that it is 17 alleged by plaintiffs Susan, Cacey, Christy, and Jennifer Winters against defendant Delores 18 Jordan; 19 d. Plaintiffs’ twelfth claim for relief (trespass); and 20 e. Plaintiffs’ twenty-fifth claim for relief (invasion of privacy), only to the 21 22 23 24 extent that it concerns alleged intrusions on May 26, 2008, and June 2, 2008. Plaintiffs’ remaining claims alleged against Jordan are dismissed with prejudice in all other respects. 3. Defendant David Silber’s motion to dismiss (Dkt. No. 258) is granted. All of 25 plaintiffs’ claims alleged against Silber are dismissed with prejudice, and Silber is dismissed 26 from this action. 2 1 4. Plaintiffs’ motion for default judgment (Dkt. No. 189) is denied as to defendant 2 Delores Jordan. 3 DATED: March 9, 2012 4 5 /s/ John A. Mendez UNITED STATES DISTRICT COURT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3