(PS) Alston v. Tassone, et al, No. 2:2011cv02078 - Document 34 (E.D. Cal. 2012)
Court Description: ORDER signed by Judge John A. Mendez on 7/27/12 ORDERING that the FINDINGS AND RECOMMENDATIONS 31 are ADOPTED in full; Defendant's MOTION to Dismiss 21 is GRANTED IN PART AND DENIED IN PART; Defendants County of Sacramento, Sacramento County Sheriff Department, Jeana Zwolinski, Matt Morgan, and Scott Jones are DISMISSED WITH PREJUDICE from the action; Plaintiffs claims against defendants Tassone and Smith are DISMISSED WITH PREJUDICE, with the exception of Plaintiff's claims for (1 ) unlawful detention in violation of the Fourth Amendment under 42 U.S.C. § 1983; (2) unlawful search in violation of the Fourth Amendment under 42 U.S.C. § 1983; (3) excessive force in violation of the Fourth Amendment under 42 U.S.C. 7; 1983; (4) conspiracy to violate Plaintiff;s Fourth Amendment rights under 42 U.S.C. § 1983; (5) assault under California state law; and (6) intentional infliction of emotional distress under California state law (premised on the manner of Pla intiffs detention only), as to which Defendants' motion to dismiss is DENIED; and Plaintiff shall file a second amended complaint in accordance with the magistrate Kudge's findings and recommendations (see in particular, docket number 31 at page 24) within 28 days of this order.(Mena-Sanchez, L)
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(PS) Alston v. Tassone, et al Doc. 34 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CD ALSTON, 11 Plaintiff, 12 13 No. 2:11-cv-2078 JAM GGH PS vs. PAUL TASSONE, et al., 14 Defendants. 15 ORDER / 16 On June 22, 2012, the magistrate judge filed findings and recommendations 17 herein which were served on the parties and which contained notice that any objections to the 18 findings and recommendations were to be filed within fourteen (14) days. No objections were 19 filed. Accordingly, the court presumes any findings of fact are correct. See Orand v. United 20 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 21 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 22 1983). 23 The court has reviewed the file and finds the findings and recommendations to be 24 supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY 25 ORDERED that: 26 \\\\\ Dockets.Justia.com 1 1. The findings and recommendations (dkt. no. 31) are ADOPTED IN FULL; 2 2. Defendants’ motion to dismiss (dkt. no. 21) is GRANTED IN PART AND 3 DENIED IN PART; 4 3. Defendants County of Sacramento, Sacramento County Sheriff Department, 5 Jeana Zwolinski, Matt Morgan, and Scott Jones are DISMISSED WITH PREJUDICE from the 6 action; 7 4. Plaintiff’s claims against defendants Tassone and Smith are DISMISSED 8 WITH PREJUDICE, with the exception of plaintiff’s claims for (1) unlawful detention in 9 violation of the Fourth Amendment under 42 U.S.C. § 1983; (2) unlawful search in violation of 10 the Fourth Amendment under 42 U.S.C. § 1983; (3) excessive force in violation of the Fourth 11 Amendment under 42 U.S.C. § 1983; (4) conspiracy to violate plaintiff’s Fourth Amendment 12 rights under 42 U.S.C. § 1983; (5) assault under California state law; and (6) intentional 13 infliction of emotional distress under California state law (premised on the manner of plaintiff’s 14 detention only), as to which defendants’ motion to dismiss is DENIED; and 15 5. Plaintiff shall file a second amended complaint in accordance with the 16 magistrate judge’s findings and recommendations (see in particular, docket number 31 at page 17 24) within 28 days of this order. 18 DATED: July 27, 2012 19 /s/ John A. Mendez UNITED STATES DISTRICT COURT JUDGE 20 21 22 23 24 25 26 2
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