GREGORY G. HOLLOWS, Magistrate Judge.
Plaintiff is proceeding pro se and in forma pauperis in this action, which was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Presently pending before the court is defendants' motion to dismiss the operative first amended complaint pursuant to Fed. R. Civ. P. 12(b)(6), originally noticed for hearing on March 15, 2012. (Dkt. No. 21.) After plaintiff failed to file a timely opposition pursuant to E.D. Cal. L.R. 230(c), the motion was submitted on the record without oral argument. (Dkt. No. 22.) Subsequently, on March 6, 2012, plaintiff filed a tardy opposition
After reviewing the papers in support of and in opposition to defendants' motion, the court's record in this matter, and the applicable law, the court now FINDS AS FOLLOWS:
The background facts are taken from the operative first amended complaint, unless otherwise noted. Plaintiff alleges that on March 26, 2011, while she was sitting in her car parked in front of a gym, two Sacramento County Deputy Sheriffs, Paul Tassone and Bruce Smith, stopped their patrol car behind her vehicle and approached her in a frightening, hostile, and aggressive manner with their loaded guns drawn, without probable cause or reasonable suspicion of criminal activity. (
Thereafter, Tassone searched plaintiff's vehicle and personal property, stating that they had a right to know who plaintiff was. (FAC ¶¶ 5, 31.) Tassone and Smith also ran a search on plaintiff's tags and her name. (FAC ¶ 33.) Additionally, Tassone went into the gym and asked the desk attendant whether plaintiff was a member of the gym. (FAC ¶ 37.) Plaintiff asked several times what she was being detained or arrested for, but purportedly did not receive a response, although she does allege that Tassone and Smith at one point told her that she was being detained because she was violent "to create a justification for the in car camera." (FAC ¶¶ 32, 35-36.) During this time, plaintiff was detained in the back of the patrol car and released after 25-30 minutes without an explanation and with a demand that she leave the parking lot. (FAC ¶¶ 5, 32, 38.)
Plaintiff further alleges that the deputy sheriffs subsequently intentionally and maliciously completed a false event report, falsely accusing plaintiff of trying to place something behind her back as the officers approached, refusing to identify herself, and being confrontational, yelling, violent, and uncooperative. (FAC ¶¶ 6, 39-43.)
When plaintiff lodged a citizen's complaint regarding the incident with the Sacramento County Sheriff's Department, defendant Matt Morgan, a lieutenant for Sacramento County Sheriff Department Bureau of Professional Standards, allegedly refused to investigate it and forwarded her complaint to another division. (FAC ¶ 44.) Defendant Jeana Zwolinski, the sergeant in charge of Tassone and Smith, also informed plaintiff that plaintiff's complaint was not an internal affairs issue, that she was proud of her officers, and that everything was done by the book. (FAC ¶¶ 45-46.)
On August 5, 2011, plaintiff filed the instant action for damages primarily alleging liability for constitutional violations under 42 U.S.C. § 1983 and for related state law tort claims. (Dkt. No. 1.) Subsequently, on October 31, 2011, the court dismissed some of plaintiff's claims with leave to amend pursuant to 28 U.S.C. § 1915. (Dkt. No. 8.) Thereafter, on November 28, 2011, plaintiff filed a first amended complaint. (Dkt. No. 11.) The first amended complaint names Tassone, Smith, Zwolinski, Scott Jones (the Sacramento County Sheriff), Morgan, the Sacramento County Sheriff Department Bureau of Professional Standards, the Sacramento County Sheriff Department, and the County of Sacramento as defendants.
The instant motion to dismiss followed.
In considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the court must accept as true the allegations of the complaint in question,
Before turning to an analysis of each individual substantive claim raised by plaintiff, the court first addresses defendants' argument that certain individual and entity defendants should be dismissed from the case.
Defendants correctly argue that defendant Sacramento County Sheriff Department is an improper party to the action, because it is merely a department or subdivision of the local government entity properly named as a party, in this case the County of Sacramento.
Defendant Zwolinski is the sergeant in charge of Tassone and Smith. (FAC ¶ 13.) Defendant Scott Jones is the sheriff of the Sacramento County Sheriff Department. (FAC ¶ 14.) Defendant Matt Morgan is a lieutenant in the Sacramento County Sheriff Department Bureau of Professional Standards tasked with investigating complaints against deputy sheriffs. (FAC ¶ 16.)
Plaintiff asserts claims for constitutional violations pursuant to 42 U.S.C. § 1983 and state law claims against these defendants. With respect to the constitutional claims, the Civil Rights Act provides as follows:
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff.
Liberally construed, plaintiff's first amended complaint essentially seeks to hold defendants Zwolinski, Jones, and Morgan liable under 42 U.S.C. § 1983 on theories of supervisory liability for the actions of Tassone and Smith, failure to investigate plaintiff's complaints, and conspiracy. However, for the reasons discussed below, the first amended complaint does not cure the deficiencies of the original complaint with respect to these claims as previously outlined in the court's screening order pursuant to 28 U.S.C. § 1915.
Importantly, supervisors cannot be held liable in their individual capacities unless a causal connection is established between the acts alleged to have breached a constitutional duty and the harm allegedly suffered by plaintiff.
As an initial matter, there is no indication that Morgan had any supervisory responsibility (beyond the authority to perform an internal investigation, discussed below) for Tassone and Smith. Moreover, even assuming for the moment that Tassone and Smith violated plaintiff's constitutional rights during the detention and search, the first amended complaint makes clear that Zwolinski, Jones, and Morgan were not at the scene and thus did not personally participate in the detention and search. Indeed, plaintiff alleges that Zwolinski and Morgan only became aware of the incident when she filed a citizen's complaint, and does not even allege that Jones is personally aware of the incident. Thus, there are no facts suggesting that these defendants ordered the detention and search, or knew about it but failed to prevent it.
Plaintiff claims that Zwolinski later stated that she was proud of her officers and that she believes that they had done everything by the book. However, plaintiff does not articulate how these general expressions of confidence in her officers' compliance with the law, made after the fact, caused the alleged unreasonable search and detention. Furthermore, Jones appears to have been named as a defendant solely due to his position as Sacramento County Sheriff. Plaintiff's vague allegations that Jones disseminated unconstitutional policies and endorsed illegal police methods or customs are entirely conclusory and patently insufficient to state a claim against Jones.
Thus, plaintiff fails to specifically allege any causal link between defendants Zwolinski, Jones, and Morgan to the alleged constitutional violations by Tassone and Smith sufficient to hold these defendants liable under a theory of supervisory liability. Plaintiff was previously advised of the legal requirements to state a claim under a theory of supervisory liability and failed to cure the identified deficiencies upon being granted leave to amend. Moreover, given the lack of connection between these defendants and plaintiff's detention and search, it seems implausible that the claim could be cured by further amendment. Therefore, plaintiff's 42 U.S.C. § 1983 claim against these defendants on the theory of supervisory liability should be dismissed with prejudice.
Plaintiff further alleges that Zwolinski, Jones, and Morgan refused to investigate her citizen's complaint against Tassone and Smith in violation of her Due Process rights under the Fourteenth Amendment.
Moreover, even if state law does somehow create an entitlement to an internal investigation, that does not mean that it constitutes a property interest for purposes of the Due Process Clause.
Therefore, the court concludes that plaintiff does not have a protected property interest in an internal investigation of her complaint for purposes of the Due Process Clause of the Fourteenth Amendment, and as such, defendants Zwolinski, Jones, and Morgan cannot be held liable under that theory. Accordingly, further leave to amend this claim against these defendants would be futile and it should be dismissed with prejudice.
Plaintiff also alleges that Morgan and Zwolinski conspired with Tassone and Smith to deprive plaintiff of her constitutional rights in violation of 42 U.S.C. § 1983. To state a claim for conspiracy under 42 U.S.C. § 1983, plaintiff must plead specific facts showing an agreement or meeting of minds between the defendants to violate her constitutional rights.
In this case, plaintiff alleges that Morgan and Zwolinski's "attempts to assist with covering up illegal acts further supported Defendants with conspiring to deprive Plaintiff of her civil rights. [Morgan and Zwolinski] have a duty to investigate and protect the public against officers who behave unethically and unlawfully." (FAC ¶ 92.) However, these allegations are conclusory, because they do not provide any facts outlining how Morgan and Zwolinski supposedly covered up the allegedly illegal acts.
Furthermore, the first amended complaint does not allege any facts that would support an inference of an agreement between Morgan, Zwolinski, and others, or a subjective intent, to violate plaintiff's constitutional rights. Nor can plaintiff allege such an agreement, given that Zwolinski and Morgan only learned of the incident when plaintiff later filed her citizen's complaint. Additionally, there is no indication that Zwolinski or Morgan ordered or authorized the detention and search. Plaintiff's "cover up" allegations appear to be merely another variation on her argument that she had a constitutional right to an internal investigation, a claim the court has already rejected for the reasons discussed above.
Accordingly, the court finds that plaintiff's conspiracy claim under 42 U.S.C. § 1983 against defendants Zwolinski and Morgan is frivolous and implausible and should be dismissed with prejudice.
The first amended complaint also purports to state claims for negligence and intentional infliction of emotional distress against defendants Zwolinski, Morgan, and Jones. Assuming the appropriate administrative claims statutes have been satisfied by plaintiff, the merits of the claims are deficient.
Under California law, "to prevail in an action based upon a defendant's alleged negligence, a plaintiff must demonstrate that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of his or her injuries."
Plaintiff's claim for intentional infliction of emotional distress against Zwolinski, Morgan, and Jones is equally frivolous. To state a prima facie case for intentional infliction of emotional distress, a plaintiff must plead facts showing "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct."
In sum, all of plaintiff's claims against defendants Zwolinski, Morgan, and Jones are either patently frivolous, implausible, and/or incapable of being cured through further amendment within the strictures of Fed. R. Civ. P. 11. Accordingly, the court recommends that these defendants be dismissed from the case with prejudice.
Plaintiff alleges liability under 42 U.S.C. § 1983 against the County of Sacramento based on alleged unconstitutional policies and inadequate training and supervision.
Since there is no respondeat superior liability under § 1983, counties and municipalities may be sued under § 1983 only upon a showing that an official policy or custom caused the constitutional tort.
Furthermore, as one federal district court in California recently explained:
In this case, plaintiff merely recites the existence of certain "illegal police methods or customs that exhibits [sic] deliberate indifference and demonstrates [sic] a conscious disregard for Plaintiff's constitutional rights and state law rights further subjecting Plaintiff to future infringements by agents acting under color of law." (FAC ¶ 81.) Plaintiff also alleges a "failure to adequately train officers in the use of force, the importance of integrity and honesty, and civil rights violations" as well as "lack of supervision." (FAC ¶¶ 82, 84.)
These conclusory allegations are unsupported by any specific facts. Plaintiff refers to alleged statements by individual defendants, such as Tassone's and Smith's alleged statement that plaintiff was mandated to comply "whenever a California cop asked for identification." (FAC ¶ 83.) However, given that Tassone and Smith are evidently not policymakers for the County, plaintiff fails to explain how these isolated statements by individuals establish a policy by the County. Even assuming for the moment that Tassone and Smith violated plaintiff's constitutional rights, plaintiff has provided no specific facts outside of this incident from which to infer that the County of Sacramento systematically condones or endorses the use of excessive force, unlawful detentions and searches, or the filing of false police reports. Thus, plaintiff's conclusory allegations, without specific supporting facts, are implausible.
Moreover, to the extent that plaintiff's
In short, the facts alleged by plaintiff relate to a specific incident as opposed to a pervasive problem with a specific County policy or custom. Under the circumstances presented here, the court finds it unlikely that this claim can be cured through further amendment. This conclusion is reinforced by the fact that plaintiff has filed similar lawsuits in this district against various Sacramento area law enforcement agencies, several of which are pending before the undersigned, containing virtually identical conclusory allegations.
For these same reasons, even assuming that all administrative claims statutes have been satisfied, plaintiff's remaining state law claims of negligence and intentional infliction of emotional distress against the County of Sacramento should also be dismissed with prejudice. Plaintiff fails to allege a cognizable duty that the County breached or any outrageous conduct by the County.
Accordingly, the court recommends that defendant County of Sacramento also be dismissed from the action with prejudice.
With only claims against the primary actors, defendants Tassone and Smith, remaining, the court turns to an analysis of plaintiff's substantive claims against these defendants. The difficulty involved with reviewing these claims is that they are scattered throughout the complaint in a hodgepodge fashion. Plaintiff includes portions of claims in various different causes of action, and sometimes mixes federal and state law claims in one cause of action. Therefore, instead of examining each cause of action, it is necessary to construe the complaint as a whole and determine which claims are sufficiently pled.
Liberally construed, the first amended complaint states claims under 42 U.S.C. § 1983 for violation of the Fourth Amendment under three different theories — unlawful detention (first, second,
To state a claim for violation of the Fourth Amendment arising from a detention, a plaintiff must allege that the detention was without reasonable suspicion.
Defendants urge dismissal of the claims of unlawful detention, unlawful search, and excessive force for primarily the same reasons. Defendants contend that plaintiff appears to concede that Smith and Tassone had reasonable suspicion to detain her and search her vehicle, because she acknowledges that Smith and Tassone saw her placing an object, potentially a weapon, behind her back in a suspicious manner. Additionally, defendants state that plaintiff conceded that she refused to identify herself and acknowledged that Tassone and Smith thought she was violent and confrontational. As such, defendants argue that Tassone and Smith reasonably believed that plaintiff posed an immediate threat to their safety and were justified in approaching plaintiff with guns drawn, detaining her in the patrol vehicle, and searching her vehicle and personal property.
However, as plaintiff points out in her opposition, defendants misconstrue the allegations in the first amended complaint. Plaintiff specifically pleads that Tassone and Smith falsely stated that she had placed something behind her back (FAC ¶ 40) and falsely claimed that she became violent, confrontational, and uncooperative. (FAC ¶¶ 41-43.) She also claims that she was willing to provide identification if the deputy sheriffs explained why they were detaining her. (FAC ¶ 27.) Therefore, a fair reading of plaintiff's complaint does not indicate that plaintiff acknowledged or conceded that the deputy sheriffs had a reasonable suspicion for detaining her and were justified in detaining her in the manner that they did. To the contrary, plaintiff contends that she did nothing wrong and was simply sitting in the gym parking lot when Tassone and Smith decided to harass her without reasonable suspicion or probable cause.
It may well be that, with further development of the facts in discovery, Tassone and Smith can show that they had a reasonable suspicion for detaining and searching plaintiff, and that the manner in which they did it was justified. However, these are factual issues inappropriate for resolution on a motion to dismiss, in the context of which the plaintiff's factual allegations must be taken as true. Accordingly, the court recommends that defendant's motion to dismiss the claims under 42 U.S.C. § 1983 against Tassone and Smith for violation of the Fourth Amendment under theories of unlawful detention, unlawful search, and excessive force be denied.
The first amended complaint also includes a claim under 42 U.S.C. § 1983 for conspiracy to violate plaintiff's Fourth Amendment rights against Tassone and Smith (tenth cause of action). As discussed above, to state a claim for conspiracy under 42 U.S.C. § 1983, plaintiff must plead specific facts showing an agreement or meeting of minds between the defendants to violate her constitutional rights.
Here, plaintiff alleges that Tassone and Smith were driving around the parking lot searching for citizens to harass, and she indicates that these defendants approached her after they had already detained another person for unknown reasons. (FAC ¶¶ 50, 91.) She claims that they decided to deprive plaintiff of her constitutional rights by handcuffing her and detaining her without a valid reason, and then concocting a false story to cover up their illegal detention by stating that she tried to place something behind her back as they approached and was violent and uncooperative. (FAC ¶¶ 39-43, 91.) Because plaintiff has alleged facts from which an agreement and intent to violate her constitutional rights can be reasonably inferred, the claim is sufficient to survive a motion to dismiss, and defendants' motion to dismiss as to this claim should be denied.
However, to the extent plaintiff purports to state a claim under 42 U.S.C. § 1983 for violation of Due Process under the Fourteenth Amendment based on Tassone's and Smith's alleged failure to investigate suspicions of criminal activities before detaining her (
In her fifth cause of action, plaintiff attempts to state an abuse of process claim against Tassone and Smith for violation of the Fourth Amendment under 42 U.S.C. § 1983. She alleges that these defendants "employed legal process for unlawful objectives" and that they abused their authority to rid the community of persons that they personally deemed undesirable. (FAC ¶ 64.)
It is unclear whether an abuse of process claim may even be maintained under 42 U.S.C. § 1983, since abuse of process is a state law tort.
Plaintiff's third cause of action states a claim for assault against Tassone and Smith under California law.
Defendants contend that Tassone and Smith, as law enforcement officers, may lawfully use force to make a detention.
In support of her claim for defamation against Tassone and Smith, plaintiff essentially alleges that these defendants maliciously and intentionally drafted a false police report stating that plaintiff was violent, uncooperative, and needed to be restrained. (FAC ¶ 78.) She claims that these false statements increase the risk of plaintiff receiving serious injury or differential treatment during future encounters with law enforcement officers. (FAC ¶ 78.)
"The tort of defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage."
Therefore, plaintiff's defamation claim against Tassone and Smith should be dismissed with prejudice.
As noted above, to state a prima facie case for intentional infliction of emotional distress ("IIED"), a plaintiff must plead facts showing "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct."
In this case, plaintiff alleges that Tassone and Smith subjected her to lethal and excessive force when they pointed a loaded gun at her, which she contends is outrageous conduct in light of the fact that she was behaving lawfully at the time of her detention. (FAC ¶¶ 99, 101.) She further alleges that Tassone and Smith intentionally used fear as a tool to intimidate plaintiff. (FAC ¶ 101.) She claims that she suffered great terror, fear, anxiety, stress, and emotional upset, and that she continues to fear for her life. (FAC ¶¶ 98, 105.) Defendants argue that Tassone's and Smith's conduct cannot be outrageous, because plaintiff fails to plead facts showing that her detention, or the manner of her detention, was unreasonable under the Fourth Amendment. However, as discussed above, the court cannot make a finding regarding the reasonableness of the detention under the Fourth Amendment without making factual determinations that are inappropriate at this juncture. Additionally, the court cannot conclude, as a matter of law, that an officer pointing a loaded gun at a private citizen who was allegedly improperly detained does not constitute outrageous conduct for purposes of an IIED claim.
However, to the extent that plaintiff bases her claim on emotional distress purportedly suffered as a result of the allegedly false statements in the police report,
Therefore, the court recommends that the portion of plaintiff's IIED claim based on any alleged false statements in the police report be dismissed with prejudice, and that defendants' motion to dismiss with respect to the rest of the IIED claim be denied.
In support of her negligence claim against Tassone and Smith, plaintiff alleges that Tassone and Smith negligently detained her without suspicion of criminal activity and that they continued to act negligently when they approached her at gun point enhancing the risk that plaintiff would be subjected to deadly force. (FAC ¶ 48.) She further alleges that their actions of "randomly harassing law abiding citizens without any suspicion of criminal activity demonstrate[] an intention to negligently abandon the duty of law enforcement. (FAC ¶ 48.)
Although plaintiff uses the words "negligent" and "negligently," the conduct alleged is intentional and wholly inconsistent with a negligence claim.
In its previous screening order pursuant to 28 U.S.C. § 1915, the court specifically instructed plaintiff regarding the necessary elements to plead a cause of action for negligence under California law, including duty, breach, causation, and damages. (
Because plaintiff has already had an opportunity to amend her complaint to state a proper negligence claim and because it appears implausible that plaintiff will be able to do so in light of the intentional nature of the conduct alleged in this case, the court recommends that plaintiff's negligence claim against Tassone and Smith be dismissed with prejudice.
Finally, defendants request that the court strike paragraphs 34, 55, and 93 of the first amended complaint insofar as they contain improper references to individuals and events in one of plaintiff's other actions pending in this district against the City of Elk Grove and some of its police officers.
Because the court recommends that some of plaintiff's claims be dismissed with prejudice and that defendants' motion to dismiss as to the remaining claims be denied, it would ordinarily not be necessary to require the filing of an amended complaint. However, as discussed above, plaintiff's claims are currently scattered throughout the complaint in a hodgepodge fashion, with portions of claims occurring in different causes of action and federal and state law claims sometimes combined in a single cause of action. This complexity is now compounded by the court's recommendation that certain claims be dismissed with prejudice. Therefore, to avoid future confusion in terms of case management and discovery, the court concludes that the filing of a second amended complaint is warranted.
Assuming that the district judge adopts this court's findings and recommendations, the second amended complaint shall set forth
Plaintiff's March 6, 2012 filing was captioned as "Plaintiff's Motion in Opposition of Motion to Dismiss/Strike; Motion for Summary Judgment; Memorandum of Points and Authorities in Support." (Dkt. No. 25.) Although the filing sets out the legal standard for a motion for summary judgment, it essentially reads like an opposition to defendants' motion to dismiss and is construed by the court as such. To the extent it can be construed as a purported motion for summary judgment, it has not been noticed for hearing in accordance with E.D. Cal. L.R. 230 and fails to comply with the requirements of E.D. Cal. L.R. 260. Accordingly, it will be denied without prejudice as procedurally improper. Plaintiff is cautioned that any future filings that fail to comply with the notice and filing requirements of the Local Rules and/or the Federal Rules of Civil Procedure will be stricken.
The court notes that, on March 6, 2012, the U.S. Marshal filed a request for reimbursement of costs for effecting service on defendant County of Sacramento. (Dkt. No. 24.) Additionally, on March 9, 2012, the U.S. Marshal filed a request for reimbursement of costs for effecting service on defendants Sacramento County Sheriff Department and Jeana Zwolinski. (Dkt. No. 28.)
Rule 4(d) of the Federal Rules of Civil Procedure provides, in pertinent part, that:
Fed. R. Civ. P. 4(d)(1), (2)(A), (B). However, the court's docket reveals that all defendants, including defendants County of Sacramento, Sacramento County Sheriff Department, and Jeana Zwolinski, in fact executed waivers of service of summons and that the waivers were filed with the court prior to the U.S. Marshal attempting service by other means. (
In accordance with the above, IT IS HEREBY ORDERED that:
1. The portions of paragraphs 34, 55, and 93 in the first amended complaint that refer to Lance McDaniel or plaintiff's action and claims pending against McDaniel and the City of Elk Grove in another action (11-cv-678-KJM-CKD) are stricken.
2. Further amendment of the complaint is not allowed until final resolution of the motion to dismiss by the district judge.
3. Any formal discovery in this matter is stayed pending final resolution of the motion to dismiss by the district judge.
4. Plaintiff's purported "motion for summary judgment" (dkt. no. 25) is denied without prejudice as procedurally improper.
5. The U.S. Marshal's requests for reimbursement of service costs (dkt. nos. 24, 28) are denied. 6. The Clerk of Court shall serve a copy of this order on the U.S. Marshal.
IT IS ALSO HEREBY RECOMMENDED that:
1. Defendants' motion to dismiss (dkt. no. 21) be granted in part and denied in part.
2. Defendants County of Sacramento, Sacramento County Sheriff Department, Jeana Zwolinski, Matt Morgan, and Scott Jones be dismissed from the action with prejudice;
3. Plaintiff's claims against defendants Tassone and Smith be 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. § 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 plaintiff's detention only), as to which defendants' motion to dismiss should be denied.
4. Plaintiff be required to file a second amended complaint in accordance with the findings and recommendations within 28 days of the district judge adopting the findings and recommendations, if they are adopted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven (7) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
