Opinion
Case No. 6:19-cv-01706-MK
02-18-2021
TERENCE WILLIAM CARR, Plaintiff, v. OLGA ALVAREZ; JILL D. HOELTING; VIVIENNE A. CHAPLEO; WALTER R. MILLER, JR.; JIM PORTER; SHANE L. NELSON; ANGELA T. LEE-MANDLIN; and JONATHAN CHAR, Defendants.
FINDINGS AND RECOMMENDATION
KASUBHAI, United States Magistrate Judge:
Pro se Plaintiff Terrance Carr filed this lawsuit in October 2019. See Second Amend. Compl., ECF No. 7 ("SAC"). The SAC lists seven Defendants, including, City of Bend Police Chief Jim Porter ("Chief Porter"); Deschutes County Circuit Court Judge Walter R. Miller ("Judge Miller"); private attorneys Angela T. Lee-Mandilin and Jonathan Char ("Attorney Defendants"); and Deschutes County Sheriff Shane Nelson ("Sheriff Nelson"). Specifically, the SAC assert claims under 42 U.S.C. § 1983 for violations of Plaintiff's rights under the Second, Fifth, Eighth, and Fourteenth Amendments of United States Constitution as well as purported violations of 18 U.S.C. §§ 241, 242, and 245. See generally SAC. Currently before the Court are motions to dismiss filed by Chief Porter, Judge Miller, and Attorney Defendants (ECF Nos. 16, 18, 43) as well as a motion for summary judgment filed by Sheriff Nelson (ECF No. 35). Because Plaintiff is pro se, and in the interest of clarity, the Court has elected to analyze the pending motions in one comprehensive Findings and Recommendation. In part I of the Discussion section, the Court analyzes the motions to dismiss filed by Chief Porter, Judge Miller, and Attorney Defendants and concludes the motions should be GRANTED IN PART. In part II, the Court analyzes the motion for summary judgment filed by Sheriff Nelson and concludes the motion should also be GRANTED.
BACKGROUND
As a threshold matter, the Court observes that Plaintiff's responses to the various motions filed by Defendants contain new factual allegations not included in the SAC. Compare SAC at 5, ECF No. 7, with Resp. Opp'n Def. Miller's Mot. Dismiss at 8, ECF No. 28, and Notice to Defs., ECF No. 42. The Court, however, confines its discussion to the allegations raised in the SAC and assumes the following facts as true as it must at this early stage of the lawsuit unless otherwise noted. See Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
Plaintiff's lawsuit arises out of a dispute with his neighbors that ultimately led to the imposition of a stalking protective order. See SAC at 2-6; see also Warren Decl. Ex. 1, ECF No. 17-1; Steele Decl. Exs. 1-4, ECF Nos. 44-1-4. On May 28, 2015, at the suggestion of Bend police officers, Plaintiff's neighbor filed a stalking claim against him in Deschutes County Circuit Court. SAC at 2. On May 30, officer Jeff Finlay issued a citation to Plaintiff. Id. On June 3, Plaintiff appeared before Judge Miller who ultimately issued an Order requiring Plaintiff to wear an ankle GPS tracker and maintain a 500-foot restraint radius from his neighbors. Id. at 2-3. Plaintiff asserts Judge Miller's rulings were part of "a judicial entrapment scheme, to set a bait [and] trap plan to nab the Plaintiff, if and when the Plaintiff walked his dogs, parked on his street, sat down on his front lawn, went to his mailbox, or perhaps looked too long towards a beautiful sunset that went down behind [his neighbor's] home[.]" Id. at 3. Defendant Angela Lee-Mandlin represented Plaintiff, negligently he asserts, in relation to the stalking and criminal matters and ultimately was fired by Plaintiff. Id. at 1-3; see also Steele Decl. Ex. 1, ECF No. 44-1.
The Court GRANTS Defendants' requests for Judicial Notice of the Deschutes County Circuit Court's Final Stalking and Protective Order and docket entries. See Defendant Jim Porter's Rule 12 Mot. Dismiss Pl.'s Compl., 2, ECF No. 16 ("Porter Mot."); Defendants' Lee-Mandilin and Char's Mot. Dismiss Pl.'s Compl. 2, ECF No. 43 ("Attorneys' Mot."); see also Coultas v. Payne, No. 3:11-cv-45-AC, 2015 WL 5920645, at *3 (D. Or. Oct. 9, 2015) ("The court may 'take judicial notice of undisputed matters of public record . . . including documents on file in federal or state courts.'") (quoting Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012)).
On July 7, Plaintiff was arrested again after his neighbors reported to Bend Police that he had violated the terms of the June 3 Order. SAC at 4. Plaintiff was taken to the Deschutes County Jail where his bail was raised from $500 to $35,000 and was told he would not be released because "the State was now involved." Id. Plaintiff had an in-custody arraignment the next day. Id. Plaintiff subsequently lost his housing and moved to Portland. Id. He also lost the ability to charge his GPS monitoring device and therefore removed it. Id.
Sheriff Nelson has submitted evidence in support of his motion for summary judgment that Plaintiff was housed at the Deschutes County Adult Jail from approximately 8:30p.m. on July 8, 2015, until approximately 4:20p.m. July 9, 2015, at which time he was released. Laherty Decl. ¶¶ 2-5, ECF No. 38; see also id. Exs. 1-7. The Court considers this evidence only for purposes of deciding Sheriff Nelson's motion and construes the evidence in the light most favorable to Plaintiff. JL Beverage Co., LLC v. Jim Bean Brands Co., 828 F.3d 1098, 1105 (9th Cir. 2016).
On September 9, Plaintiff received a phone call from a female Bend Police officer "instructing [him] to do as she told [him], or a warrant for [his] arrest would be issued the following day by five p.m." Id.
On January 7, 2016, Deschutes County Circuit Court Judge Alta Brady issued a warrant for Plaintiff's arrest. Id. Defendant Jonathon Char, who represented Plaintiff, then "aided and abetted the prosecution with an orchestrated move that forced [him] under duress into signing a coerced plea bargain in exchange for [him] to not suffer 30 days wrongfully incarcerated[.]" Id.; see also Steele Decl. Ex. 1, ECF No. 44-1. On January 12, Deschutes County Circuit Court Judge Beth Bagley signed a stipulated Final Stalking Protective Order ("SPO") and Judgment that prohibited Plaintiff, inter alia, from possessing firearms or munitions. Warren Decl., Ex. 1 at 3, ECF No. 17-1. The criminal case against Plaintiff was ultimately dismissed by the state. See Steele Decl. Ex. 4 at 2, ECF No. 44-4.
In April 2016, Plaintiff was arrested based on "false aggregate data from the Bend Stalking Case." SAC at 4. On August 1, 2017, Portland police arrested Plaintiff on "related and non-related" charges. Id. at 5. In December 2017, a Washington County Prosecution team "used the Bend Case to bolster their means to prosecute" him and as of October 2019 "the false aggregate data remained in [Plaintiff's] criminal folder." Id.
DISCUSSION
Plaintiff asserts three claims under 42 U.S.C. § 1983, which "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation marks omitted). To establish violation of a federal constitutional right under 42 U.S.C. § 1983, a party must show "(1) that a right secured by the Constitution or the laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of State law." Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). The first step in a § 1983 claim is to "identify the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiff's first claim alleges his Fifth and Fourteenth Amendment Rights were violated when Judge Miller entered his June 3 protective order after a hearing in which Plaintiff asserts he was not allowed to make a defense. Plaintiff's second claim alleges the terms of SPO, which prohibit his possession of firearms, infringes his Second Amendment rights. His third claim alleges his Eighth and Fourteenth Amendment rights were violated when he was unlawfully arrested, wrongfully confined, and given excessive bail. Plaintiff also alleges that various law enforcement agencies have used "False Aggregate Arrest Data associated with the False Stalking Charge" from his "Bend Case" improperly. See SAC at 5. The Court will address the Defendants' arguments related to their specific motions as relevant below.
I. Defendants' Motions to Dismiss
A. Standard of Review
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013) (quotation marks omitted). As such, a court is to presume "that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of "subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ. P. 12(b)(1). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks subject-matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a case, the court must dismiss the complaint, even sua sponte if necessary).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either "facial" or "factual." See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id. "A jurisdictional challenge is factual where 'the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'" Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Air for Everyone, 373 F.3d at 1039)). When a defendant factually challenges the plaintiff's assertion of jurisdiction, a court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Robinson, 586 F.3d at 685; Safe Air for Everyone, 373 F.3d at 1039. A factual challenge "can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency." Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (citation and quotation marks omitted).
Where the plaintiff "fails to state a claim upon which relief can be granted," the court must dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Nevertheless, bare assertions that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs the pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se plaintiff's claims may be dismissed with prejudice only where it appears beyond doubt the plaintiff can prove no set of facts that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
B. Chief Porter's Motion to Dismiss
Chief Porter moves to dismiss Plaintiff's claims against him because Plaintiff failed to allege Chief Porter's personal involvement in any acts or omissions that may have violated Plaintiff's Constitutional rights. Porter Mot. 3-5. More specifically, he argues, Plaintiff's claims fail because § 1983 claims may not proceed on a theory of respondeat superior liability. Id. at 3. Rather, to hold supervisors individually liable in § 1983 suits, a plaintiff must allege either (1) the supervisor's "personal involvement in the constitutional deprivation," or "(2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).
The requisite causal connection can be established by setting in motion a series of acts by others, or by knowingly refusing to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury. A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.Id. at 1207-08 (internal citations, alterations, and quotation marks omitted). To premise a supervisor's alleged liability on a policy promulgated by the supervisor, a plaintiff must identify a specific policy and establish a "direct causal link" between that policy and the alleged constitutional deprivation. See, e.g., City of Canton v. Harris, 489 U.S. 378, 385 (1989); Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992).
Here, other than listing Chief Porter in the caption of the SAC, Plaintiff otherwise fails to describe facts sufficient to demonstrate Chief Porter's personal involvement in a specific constitutional violation or to establish a causal connection between Chief Porter's conduct and a constitutional violation. See Starr, 652 F.3d at 1207; see also Chavez v. United States, 683 F.3d 1102, 1110-11 (9th Cir. 2012) (conclusory allegations that a supervisor had general responsibilities to review and approve subordinates' conduct did not support a conclusion that he knew or had reason to know about alleged constitutional violations); Ivey v. Bd. Of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (noting that although the "standard used to evaluate a motion to dismiss is a liberal one, particularly when the action has been filed pro se . . . [v]ague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss"). Plaintiff has also failed to describe any policy promulgated by Chief Porter that led to a specific constitutional deprivation suffered by Plaintiff. See City of Canton, 489 U.S. at 385; Oviatt, 954 F.2d at 1474.
As such, Chief Porter's motion to dismiss should be granted. However, given Plaintiff's pro se status, he should be given leave to cure, if possible, the deficiencies outlined above. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc) (explaining that "particularly in civil rights cases," courts "have an obligation where the petitioner is pro se . . . to construe the pleadings liberally and to afford the petitioner the benefit of any doubt"); Stone v. Van Wormer, No. 3:19-cv-00144-HZ, 2019 WL 7194565, at *4 (D. Or. Dec. 26, 2019) ("Ordinarily a pro se litigant is given leave to amend his or her complaint.") (citation omitted).
Chief Porter also argues that even if Plaintiff sufficiently alleged his personal involvement his claims should be dismissed because the SAC fails to state a claim. Porter Mot. 4-5. Given the above recommendation to grant the motion to dismiss, and recommendation that Plaintiff receive one final opportunity to amend the Complaint given his pro se status, the Court need not reach the argument.
C. Judge Miller's Motion to Dismiss
Judge Miller moves to dismiss Plaintiff's claims against him because he is entitled to absolute judicial immunity. Def. Walter Miller's Mot. Dismiss, 2-5, ECF No. 18 ("Miller's Motion"). "It is well settled that judges are generally immune from civil liability under section 1983." Meek v. Cty. of Riverside, 183 F.3d 962, 965 (9th Cir. 1999) (citation omitted). "A judge is not deprived of immunity because he takes actions which are in error, are done maliciously, or are in excess of his authority." Id. at 966 (citation omitted). Further, "judicial immunity is not overcome by allegations of bad faith or malice." Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam).
Judicial immunity does not exist in two narrow circumstances: (1) for nonjudicial actions; and (2) for actions, though judicial in nature, taken in complete absence of all jurisdiction. Id. at 11-12. To determine if an act is judicial in nature, courts consider whether: (1) the precise act is a normal judicial function; (2) the events occurred in the judge's chambers; (3) the controversy centered around a case then pending before the judge; and (4) the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity. Meek, 183 F.3d at 967.
The first exception to the judicial immunity doctrine does not apply here. Judge Miller was acting in his role as a judge for the Circuit Court for the State of Oregon, Deschutes County. While Plaintiff alleges that Judge Miller violated his rights under color of law, the judge plainly acted in his capacity as a judicial officer when taking the actions of which Plaintiff complains.
Nor does the second exception to the judicial immunity doctrine apply in this case. The specific allegations against Judge Miller—including the issuance of the June 3 Order to which Plaintiff objects—all concern actions within the judge's jurisdiction on a case before him in his official capacity. Meek, 183 F.3d at 967. Oregon Revised Statute 163.738(2)(a) explicitly granted Judge Miller authority to hold a hearing and issue the stalking protective order. Even if Plaintiff's speculative assertion that Judge Miller's Order to "set a bait [and] trap plan to nab" was made out of malice or bad faith, such allegations cannot overcome judicial immunity. See Mireles, 502 U.S. at 11.
Plaintiff's claims against Judge Miller are based on alleged acts that arise solely from his judicial functions. Those claims are therefore barred by judicial immunity. Because amendment would be futile, Plaintiff's claims against Judge Miller should be dismissed with prejudice and without leave to amend. See Delant-Cory v. Harris, 1:12-cv-00094-CL, 2012 WL 929855, at *3-5 (D. Or. Feb. 29, 2012) (recommending dismissing claims with prejudice and without leave to amend where defendant judges properly invoked judicial immunity), adopted, 2012 WL 929854 (D. Or. Mar. 19, 2012).
Because the Court finds Judge Miller is entitled to absolute judicial immunity, it declines to consider his alternative argument for dismissing the Complaint.
D. Attorney Defendants' Motion to Dismiss
Generally, private parties are not state actors for purposes of § 1983. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). A litigant may, however, "seek damages under 42 U.S.C. § 1983 from a private party based on the violation of a constitutional right" if the plaintiff can show that "the private party engaged in state action under color of state law[.]" Brunette v. Humane Soc'y of Ventura Cty., 294 F.3d 1205, 1209 (9th Cir. 2002). Four tests have been developed to determine "whether a private [party's] actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion test; and (4) the governmental nexus test." Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002) (citation omitted). However, the Ninth Circuit has held that "[a] private lawyer representing a client in the lawyer's traditional adversarial role is not considered a state actor for purposes of § 1983." Subramaniam v. Mosman, 2017 WL 6887138, at *3 (D. Or. Oct. 31, 2017) (citing Simmons v. Sacramento Cty. Superior Court, 318 F.3d at 1156, 1161 (9th Cir. 2003)).
Here, the SAC demonstrates that Attorney Defendants "merely represented their client in the traditional adversarial role. Thus, [Plaintiff's] unsupported conclusions are inadequate to state a claim under § 1983 against defendants." Committee v. Miller Nash Graham & Dunn, LLP, No. 3:18-cv-01013-AA, 2020 WL 410189, at *3 (D. Or. Jan. 23, 2020), reconsideration denied, 2020 WL 1821455 (D. Or. Apr. 10, 2020).
Various portions of the Complaint also reference allegations of conspiracies allegedly targeted at Plaintiff. See, e.g., Compl. 1, 5, 6. "To prove a conspiracy between the state and private parties under section 1983, [the plaintiff] must show an agreement or meeting of the minds to violate constitutional rights." United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989). "Such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants." Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (citation omitted). "To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy." Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002). To the extent Plaintiff has attempted to plead a conspiracy under § 1983, he has not done so with sufficient factual specificity to state a viable claim. In other words, "[h]e has not pleaded specific facts to show that such an agreement existed, what it entailed, what was each defendant's objective in the alleged conspiracy, or that they communicated" with one another. Solomon v. Las Vegas Metro. Police Dep't, 441 F. Supp. 3d 1090, 1099-100 (D. Nev. 2020).
Accordingly, Attorney Defendants motion to dismiss should be granted. However, for the reasons discussed supra at section I.B., the Court should permit Plaintiff an opportunity to amend his complaint. See Bretz, 773 F.2d at 1027 n. 1; Stone, 2019 WL 7194565, at *4.
Because the Court finds dismissal of the Complaint should be granted, it declines to consider Attorney Defendants alternative grounds for dismissing the Complaint.
II. Sheriff Nelson's Motion for Summary Judgment
A. Standard of Review
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show "that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
B. Sheriff Nelson's Motion
Sheriff Nelson maintains that the statute of limitations bars Plaintiff's § 1983 claim and therefore summary judgment is appropriate. Shane Nelson Mot. Summ. J. 6, ECF No. 65 ("Sheriff Mot."). There is no specified statute of limitations for an action under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 266 (1985); Pouncil v. Tilton, 704 F.3d 568, 573 (9th Cir. 2012). "[F]ederal courts [therefore] look to the law of the state in which the cause of action arose and apply the state law of limitations governing [the] analogous cause of action." Pouncil, 704 F.3d at 573. "Oregon's two-year statute of limitations . . . applies to actions under 42 U.S.C. § 1983." Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (citation omitted).
Here, although the first page of the SAC explicitly lists Sheriff Nelson as a Defendant, the Court was unable to locate specific references to him elsewhere withing the document. The conduct in the SAC that potentially implicates Sheriff Nelson, however, seems to conclude with Plaintiff's release from jail on July 9, 2015. See SAC at 4; see also Laherty Decl. Ex.7, ECF No. 38-1. Thus, in order to comply with the two-year statute of limitations, Plaintiff would have had to bring his lawsuit against Sheriff Nelson by July 9, 2017. Plaintiff filed the initial Complaint in this lawsuit in October 2019. See ECF No. 1. As such, the Court should find that Plaintiff's claim against Sheriff Nelson is barred by the statute of limitations. Sheriff Nelson's motion for summary judgment should therefore be granted.
RECOMMENDATION
For the reasons above, Defendants' motions should be GRANTED as follows:
• Chief Porter's motion to dismiss (ECF No. 16) and Attorney Defendants' motion to dismiss (ECF No. 43) should be GRANTED and the claims against them should be dismissed without prejudice as to these Defendants;
• Judge Miller's motion to dismiss (ECF No. 18) should be GRANTED and the claims against him should be dismissed with prejudice;
• Sheriff Nelson's motion for summary judgment (ECF No. 35) should be GRANTED and claims against him should be dismissed with prejudice.
The Court should permit Plaintiff leave to file a Third Amended Complaint to cure, if possible, the deficiencies outlined in this Finding and Recommendations. Plaintiff should be counseled that, should he elect to lodge a Third Amended Complaint, he must reallege each of his claims, including the specific facts underlying each claim, and that he "may not incorporate any part of [his] prior pleading[s] by reference." LR 15-1(c).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed. R. Civ. P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED this 18th day of February 2021.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI (He / Him)
United States Magistrate Judge