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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 STEVEN ERIC GOULD, Case No. 8:19-cv-01090-JGB-JC 11 Plaintiff, 12 v. 13 ORDER ACCEPTING FINDINGS,

CONCLUSIONS, AND

14 COUNTY OF ORANGE, et al., RECOMMENDATIONS OF UNITED

STATES MAGISTRATE JUDGE

15 Defendants. [DOCKET NO. 65] 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative Third 18 Amended Complaint (alternatively, “TAC”), the parties’ submissions in connection 19 with the Motion to Dismiss the Third Amended Complaint, and all of the records 20 herein, including the September 9, 2023 Report and Recommendation of United 21 States Magistrate Judge (“Report and Recommendation”) and Plaintiff’s 22 Objections to the Report and Recommendations (“Objections”). The Court has 23 further made a de novo determination of those portions of the Report and 24 Recommendation to which objection is made. The Court overrules the Objections, 25 and agrees with, approves, accepts and adopts the Report and Recommendation. 26 /// 27 /// 28 /// 1 Plaintiff’s Objections are largely frivolous. He insists, for example, that he 2 is not an inmate and is instead an undercover police officer who is also entitled to 3 diplomatic immunity. (See Objections at 1-3, 5, 7-8). Plaintiff asserts that these 4 facts have been established and verified in two pending cases that he filed in the 5 U.S. District Court for the District of Nevada – respectively, a civil rights action 6 regarding Plaintiff’s current conditions of confinement in Nevada state prison, see 7 Gould v. Zuniga, et al., Case No. 2:22-cv-10600-GMN-BNW, and a federal habeas 8 corpus action in which Plaintiff seeks relief from his 2021 criminal conviction in 9 Nevada state court, see Gould v. Reubart, et al., Case No. 2:22-cv-1755-GMN- 10 EJY. Plaintiff asks the Court to take judicial notice of these “facts,” and contends 11 that the Report and Recommendation should be denied or stricken for failing to 12 acknowledge these “facts” and erroneously applying the Prison Litigation Reform 13 Act of 1995 (“PLRA”) when Plaintiff assertedly is not a prisoner. (See Objections 14 at 3-5, 7-10). Plaintiff also requests that all filings in this case be sealed due to the 15 purportedly “sensitive nature of this case.” (See Objections at 1, 6-7, 10). 16 Plaintiff’s asserted “facts” in the Objections are baseless and wholly 17 implausible. There is nothing in Plaintiff’s District of Nevada cases to substantiate 18 that he is an uncover officer or is entitled to diplomatic immunity. Moreover, 19 notwithstanding Plaintiff’s contention that he is being unlawfully confined in 20 Nevada state prison (see Objections at 4), he is indisputably a state prisoner and is 21 therefore properly subject to the PLRA.1 The merits of Plaintiff’s conviction and 22 23 1As noted in the Report and Recommendation, Plaintiff was convicted on April 30, 2021, 24 in Clark County District Court Case No. C-17-324819-3, and sentenced to twenty-five years to life in prison, and the Nevada Supreme Court affirmed the conviction on October 11, 2022. See 25 Gould v. Nevada, 518 P.3d 482 (Nev. 2022). As noted above, Plaintiff is currently seeking federal habeas corpus relief from that conviction and sentence which he is now serving in 26 Nevada state prison. See Case No. 2:22-cv-1755-GMN-EJY (D. Nev.). The Court has taken 27 judicial notice of these public court records. See Fed. R. Evid. 201; Rosales-Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir. 2014); Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 28 (continued...) 2 1 sentence cannot be contested in this civil rights action. See Preiser v. Rodriguez, 2 411 U.S. 475, 500 (1973). Plaintiff also has not identified any plausibly 3 confidential information in this case which might warrant sealing or redacting any 4 filings. 5 In addition, Plaintiff contends that this case should be stayed pending 6 resolution of his federal habeas action in the District of Nevada, after which he 7 intends to add a claim against the State of Nevada for its allegedly “direct 8 involvement [in] and/or causal connection to” the arrest and detainment at issue in 9 this case. (See Objections at 1, 6-7, 10). However, as the Magistrate Judge 10 correctly determined, Plaintiff’s challenge to the lawfulness of that arrest, in Claim 11 One of the Third Amended Complaint, is barred by Heck v. Humphrey, 512 U.S. 12 477 (1994), as Plaintiff’s subsequent conviction in Nevada has not been 13 invalidated in any respect. As Heck makes clear, a Section 1983 “cause of action 14 for damages attributable to an unconstitutional conviction or sentence does not 15 accrue until the conviction or sentence has been invalidated.” Heck, 512 U.S. at 16 489-90. A stay of this action is therefore unwarranted. 17 Plaintiff has failed to establish any error in the Magistrate Judge’s Report 18 and Recommendation. Accordingly, as indicated above, the Court overrules the 19 Objections, and agrees with, approves, accepts and adopts the Report and 20 Recommendation. 21 /// 22 /// 23 24 25 1(...continued) 26 2012). In addition, a search of online inmate records of the Nevada Department of Corrections 27 reveals that Steven Gould, with ID number 1249076, is currently an inmate. See https://ofdsearch.doc.nv.gov/ (last visited October 17, 2023). Indeed, Plaintiff’s current address 28 with the Court is the location of Ely State Prison in Ely, Nevada. 3 1 IT IS HEREBY ORDERED: 2 1. the Motion to Dismiss (Docket No. 65) filed by Defendants the 3 County of Orange (“County”) and former Orange County Sheriff 4 Sandra Hutchens (collectively, “Movants”) is granted in part and 5 denied in part; 6 2. the following claims/predicates of the Third Amended Complaint are 7 dismissed without leave to amend: 8 (a) any claim predicated on an asserted violation of the Foreign 9 Sovereign Immunities Act of 1976 or plaintiff’s asserted status 10 as “an accredited and recognized Agent and Representative of a 11 Foreign Sovereign-State-In-Fact”; 12 (b) Claim One; 13 (c) the ADA predicate as against Sheriff Hutchens and Deputy 14 Gilbert in Claim Five; 15 (d) the ADA predicate as against all Defendants named in Claim 16 Six; 17 (e) the ADA predicate as against Sheriff Hutchens and Captain 18 Coppock in Claim Seven; 19 (f) Claim Eight; and 20 (g) Claim Nine; 21 3. The following claims/predicates of the Third Amended Complaint are 22 dismissed with leave to amend; 23 (a) Claim Three as against the Movants; 24 (b) Claim Four as against the Movants; 25 (c) the Fourteenth Amendment excessive force predicate against all 26 Defendants named in Claim Five and the ADA predicate 27 against the County in Claim Five; and 28 /// 4 1 (d) the First Amendment retaliation predicate against all 2 Defendants named in Claim Seven; 3 4. Within twenty (20) days of the date of this Order, Plaintiff shall do 4 one of the following: 5 (a) if Plaintiff wishes to proceed with the claims that have been 6 dismissed with leave to amend and is able to cure the pleading 7 defects therein that have been identified in this Report and 8 Recommendation, Plaintiff shall file a Fourth Amended 9 Complaint;2 10 (b) if Plaintiff no longer wishes to proceed with this action, 11 Plaintiff shall file a Notice of Dismissal which will result in the 12 voluntary dismissal of this action without prejudice; or 13 (c) if Plaintiff wishes to proceed solely with the remaining claims 14 that have not been dismissed (Claim Two (as against all 15 Defendants named therein); Claim Three as against Deputy 16 Maracine; Claim Four as against Deputies Weidenkeller and 17 Thornton; the First Amendment Free Exercise Clause predicate 18 for Claim Six (as against all Defendants named therein); the 19 20 2Any Fourth Amended Complaint must: (a) be labeled “Fourth Amended Complaint”; 21 (b) be complete in and of itself and not refer in any manner to the original Complaint, the First Amended Complaint, the Second Amended Complaint, or the Third Amended Complaint – i.e., 22 it must include all claims on which plaintiff seeks to proceed (Local Rule 15-2); (c) contain a “short and plain” statement of each claim for relief “showing that [plaintiff] is entitled to relief” 23 (Fed. R. Civ. P. 8(a)); (d) make each allegation “simple, concise and direct” and contain factual 24 allegations in clear short, concise, numbered paragraphs, each “limited as far as practicable to a single set of circumstances” (Fed. R. Civ. P. 8(d)(1), 10(b)); (e) set forth clearly the sequence of 25 events giving rise to the claim(s) for relief; (f) reflect which claims are brought against which defendant(s) in which capacity and allege specifically what each defendant did and how that 26 individual’s conduct specifically violated plaintiff's civil rights; (g) not add defendants or claims 27 that are not related to the claims asserted in the Third Amended Complaint and not reassert claims that have been dismissed without leave to amend; and (h) name all parties in the 28 caption/title (Fed. R. Civ. P. 10(a)). 5 1 ADA predicate for Claim Seven (as against the County); and 2 the Fourteenth Amendment conditions of confinement predicate 3 for claim Seven (as against all defendants named therein), 4 Plaintiff shall file a Notice of Intent to Proceed Solely on 5 Remaining Claims in Third Amended Complaint, indicating 6 that Plaintiff intends to proceed solely on the foregoing 7 remaining claims/predicates; 8 5. Plaintiff is cautioned that his failure timely to file a Fourth 9 Amended Complaint, a Notice of Dismissal, or a Notice of Intent 10 to Stand on Remaining Claims/Predicates in Third Amended 11 Complaint may be deemed his admission that amendment is 12 futile, and may result in the dismissal of this action with or 13 without prejudice on the grounds set forth in the Report and 14 Recommendation, on the ground that amendment is futile, for 15 failure diligently to prosecute and/or for failure to comply with 16 this Order. 17 6. If Plaintiff files a Notice of Intent to Proceed Solely on Remaining 18 Claims/Predicates in Third Amended Complaint, Defendants shall file 19 an Answer within fourteen (14) days of the date they are served with 20 the same. 21 IT IS FURTHER ORDERED that the Clerk serve copies of this Order on 22 Plaintiff and counsel for Defendants. 23 IT IS SO ORDERED 24 DATED: October 31, 2023 25 ________________________________________ 26

HONORABLE JESUS G. BERNAL

27 UNITED STATES DISTRICT JUDGE 28 6