Christian Alvarado v. Los Angeles Unified School District

Opinion

Case No. 2:22-cv-01591-SSS-AGR Plaintiff, v. AND RECOMMENDATION OF UNITED STATES MAGISTRATE DISTRICT, et al. Defendants. On April 3, 2023, the Court entered an Order (1) granting Defendant LAUSD’s motion to dismiss the complaint; (2) dismissing all claims against LAUSD and all official capacity claims against Does 1 through 5 with prejudice as to federal claims and without prejudice as to state law claims; (3) dismissing the individual capacity claims against Does 1 through 5 with leave to amend; and (4) ordering Plaintiff to file a First Amended Complaint within 30 days if he wished to proceed with this action. [Dkt. 21]. Plaintiff did not timely file a First Amended Complaint and did not request an extension of time to do so. Pursuant to 28 U.S.C. § 636, the Court has reviewed the complaint, records on file, the second Report and Recommendation of the United States Magistrate Judge, the objections filed by Plaintiff and the response filed by Defendant. The Court accepts the findings and recommendation of the Report. For the following reasons, Plaintiff’s Objections to not warrant a change to the Magistrate Judge’s findings or recommendation. The Report recommends the dismissal of this action because of Plaintiff’s failure to prosecute or failure to comply with the Court’s order to file a First Amended Complaint. [Dkt. 25]. Instead of filing a First Amended Complaint, Plaintiff filed Objections disputing the pleading deficiencies of his original Complaint. [Dkt. 26]. But such Objections were due by March 20, 2023, in response to the Magistrate Judge’s earlier Report finding that the original Complaint had failed to state a claim for which relief may be granted. [Dkt. 19-20]. The Court has already adopted the Magistrate Judge’s findings from the earlier Report. [Dkt. 21]. Plaintiff’s Objections, filed on June 30, 2023, are late by more than three months. In any event, Plaintiff’s Objections do not warrant a change to the Magistrate Judge’s earlier findings as to the deficiencies of the original Complaint. [Dkt. 20]. The original Complaint, which alleged civil rights violations when Plaintiff was prevented from picking up his child from school, failed to state a claim for which relief may be granted. Plaintiff objects that the Los Angeles Unified School District is liable, under 42 U.S.C. § 1983, for interference with his custody of his child. [Dkt. 26 at 4, 7-8]. As the Report found, however, the District is an arm of the state entitled to Eleventh Amendment immunity from suit under 42 U.S.C. § 1983. [Dkt. 20 at 7]. Plaintiff objects that the police violated the Fourth Amendment by 26 at 4, 5]. As the Report found, however, a police officer’s request for identification, without more, does not violate the Fourth Amendment. [Dkt. 20 at 8-9]. Plaintiff relatedly objects that the police threatened him and refused to write a police report. [Dkt. 26 at 5, 9, 11]. As the Report found, however, the mere threat of arrest does not constitute a seizure under the Fourth Amendment. [Dkt. 20 at 9]. Moreover, a police officer’s refusal to write a police report does not violate a right secured by the Constitution or federal law. See Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041 (9th Cir. 1994) (“The police have no affirmative obligation to investigate a crime in a particular way or to protect one citizen from another even when one citizen deprives the other of liberty of property.”) (citing DeShaney v. Winnebago Cnty., 489 U.S. 189, 195-96 (1989)). Plaintiff objects that he should receive “proper discovery” regarding training policies in effect for the police department and school district employees. [Dkt. 26 at 4-5, 10]. But Plaintiff is not entitled to discovery before he has stated a plausible claim for relief. See Mujica v. AirScan Inc., 771 F.3d 580, 593 & n.7 (9th Cir. 2014). As the Report found, Plaintiff has not stated a plausible claim for relief. Plaintiff objects that Defendants are liable under the “state-created danger” exception to the general rule that a state actor is not liable for an omission or failure to protect. [Dkt. 26 at 8-9]. But as Plaintiff also concedes, “there was no immediate danger” arising from the incident. [Id. at 10]. Accordingly, Plaintiff has not stated a claim under the exception. See Patel v. Kent Sch. Dist., 648 F.3d 965 (9th Cir. 2011) (noting that the state-created danger exception “applies only where there is affirmative conduct on the part of the state placing the plaintiff in danger”) (citation and internal quotation marks omitted). l IT IS ORDERED that Judgment is entered dismissing this action for □□ failure to timely file a First Amended Complaint, for failure to diligently prosecute this action, and for failure to comply with Court orders. DATED: September 27, 2023 United States District Judge