(PS) Payne v. Mono County et al, No. 2:2011cv02262 - Document 22 (E.D. Cal. 2012)
Court Description: ORDER signed by Judge Garland E. Burrell, Jr on 11/6/12 ADOPTING 19 Findings and Recommendations; GRANTING 13 Motion to Dismiss filed by defendants Mono County Board of Supervisors and Mono County Planning Commission; Plaintiff's claims aga inst those defendants are DISMISSED. Plaintiff is DENIED leave to amend his claims against the moving defendants, except plaintiff's due process claims based on the alleged "secret meeting," if plaintiff can cure the deficiencies regar ding that claim. Defendant Mono County is DISMISSED for failure to effect service of process within the time prescribed by Rule 4(m) and for failure to respond to the magistrate judges 9/13/12 order to show cause regarding service on that defendant ; and Plaintiff is GRANTED 30 days from the date of this order to file a second amended complaint as provided in the 9/13/12 Findings and Recommendations. The second amended complaint must bear the docket number assigned to this case and must be labeled "Second Amended Complaint." Failure to timely file a second amended complaint in accordance with this order will result in a recommendation by the magistrate judge that this action be dismissed with prejudice. (Meuleman, A)
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(PS) Payne v. Mono County et al Doc. 22 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 ELROY PAYNE, 8 Plaintiff, 9 10 No. 2:11-cv-2262-GEB-EFB PS vs. 11 MONO COUNTY; MONO COUNTY BOARD OF SUPERVISORS; MONO COUNTY PLANNING COMMISSION, 12 Defendants. 13 __________________________________/ 14 ORDER On September 13, 2012, the magistrate judge filed findings and recommendations 15 herein which were served on the parties and which contained notice that any objections to the 16 findings and recommendations were to be filed within fourteen days. Plaintiff filed objections on 17 September 28, 2012, defendants filed a response thereto on October 15, 2012, and they were 18 considered by the undersigned. 19 This court reviews de novo those portions of the proposed findings of fact to 20 which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. 21 Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 22 (1982). As to any portion of the proposed findings of fact to which no objection has been made, 23 the court assumes its correctness and decides the motions on the applicable law. See Orand v. 24 United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 25 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 26 1983). 1 Dockets.Justia.com 1 The court has reviewed the applicable legal standards and, good cause appearing, 2 concludes that it is appropriate to adopt the proposed Findings and Recommendations in full. 3 Accordingly, IT IS ORDERED that: 4 5 6 7 1. The proposed Findings and Recommendations filed September 13, 2012, are ADOPTED; 2. The motion to dismiss filed by defendants Mono County Board of Supervisors and Mono County Planning Commission, Dckt. No. 13, is granted; 8 3. Plaintiff’s claims against those defendants are dismissed; 9 4. Plaintiff is denied leave to amend his claims against the moving defendants, 10 except plaintiff’s due process claims based on the alleged “secret meeting,” if plaintiff can cure 11 the deficiencies regarding that claim; 12 5. Defendant Mono County is dismissed for failure to effect service of process 13 within the time prescribed by Rule 4(m) and for failure to respond to the magistrate judge’s 14 September 13, 2012 order to show cause regarding service on that defendant; and 15 6. Plaintiff is granted thirty days from the date of this order to file a second 16 amended complaint as provided in the September 13, 2012 Findings and Recommendations. The 17 second amended complaint must bear the docket number assigned to this case and must be 18 labeled “Second Amended Complaint.” Failure to timely file a second amended complaint in 19 accordance with this order will result in a recommendation by the magistrate judge that this 20 action be dismissed with prejudice. 21 Dated: November 6, 2012 22 23 24 GARLAND E. BURRELL, JR. Senior United States District Judge 25 26 2
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