(PS) Devore v. CDCR, et al.,

Filing 44

ORDER signed by Chief District Judge Kimberly J. Mueller on 9/7/2020 ADOPTING the findings and recommendations filed 12/13/2019, except that plaintiff's claims against defendant Marie Blake also are DISMISSED with prejudice as noted below; Because no claims have been brought against defendants CDCR, Gates, and Cal-OSHA, the Clerk shall acknowledge their termination from this case on the docket; GRANTING the motion to dismiss (ECF No. #31 ) and this case is DISMISSED with prejudice as to defendants Welker, Saich, Lewis, Milne and Blake; and the Clerk shall closed this case. CASE CLOSED (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAWN DEVORE,

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Plaintiff,

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No. 2:18-cv-02487 KJM AC (PS)

v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Plaintiff is proceeding in this action in pro per. The matter was referred to a United States

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Magistrate Judge as provided by Local Rule 302(c)(21).
On December 13, 2019, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within twenty-one days. F&Rs, ECF No. 39.

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Plaintiff has filed objections to the findings and recommendations, Obj., ECF No. 41, and

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defendants have responded to the objections, ECF No. 42. The court has considered both parties’

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filings.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,

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this court has conducted a de novo review of this case. Having reviewed the file, the court finds

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the findings and recommendations to be supported generally by the record and by the proper
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analysis. The court, however, is persuaded by defendants’ argument that the court should dismiss

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the entire action with prejudice, see ECF No. 42 at 3-4 & n.1, and so orders below. Even if

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defendant Marie Blake was properly served with summons, she is sued in her professional

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capacity and plaintiff’s claims under 42 U.S.C. § 1983 are therefore barred by Eleventh

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Amendment immunity. The state common law negligence and emotional distress claims are

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barred for plaintiff’s failure to comply with the California Tort Claims Act.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed December 13, 2019, are adopted except that

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plaintiff’s claims against defendant Marie Blake also are dismissed with prejudice as noted
below.

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2. Because no claims have been brought against defendants CDCR, Gates, and Cal-

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OSHA, the Clerk of the Court shall acknowledge their termination from this case on the docket.

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3. The motion to dismiss (ECF No. 31) is GRANTED and this case is DISMISSED with

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prejudice as to defendants Welker, Saich, Lewis, Milne and Blake.
4. The Clerk of Court shall CLOSE this case.
DATED: September 7, 2020.

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