Opinion
Case No. CV 20-09945 CJC (RAO)
03-26-2021
VADIM STANLEY MIESEGAES, Plaintiff, v. MALINDA DURNEN, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed Plaintiff's First Amended Complaint ("FAC"), Dkt. No. 9, the Report and Recommendation of the United States Magistrate Judge ("Report"), Dkt. No. 11, Plaintiff's Objections, Dkt. No. 14, and all other records and files herein. Further, the Court has made a de novo determination of those portions of the Report to which objections have been made. Although the Court is not persuaded by the Objections, the Court briefly addresses one of Plaintiff's arguments.
Plaintiff argues that official capacity claims must be dismissed without prejudice under Freeman v. Oakland Unified School District, 179 F.3d 846, 847 (9th Cir. 1999). In Freeman, the Ninth Circuit affirmed the district court's holding that the Eleventh Amendment barred a claim against a school district, but ordered the district court to modify its dismissal of the claim to be without prejudice as it was a dismissal for lack of jurisdiction. Id. Here, Plaintiff's official capacity claims are being dismissed for failure to state a claim and not for lack of jurisdiction. Accordingly, Freeman is inapplicable and Plaintiff's Objections are overruled.
The Court hereby accepts and adopts the Magistrate Judge's findings, conclusions, and recommendations. IT IS ORDERED that this action is dismissed with prejudice and without leave to amend.
DATED: March 26, 2021
/s/_________
HON. CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE