(PS) Devore v. Department of Justice et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:18-cv-02487 KJM AC (PS)
CALIFORNIA DEPARTMENT OF
REHABILITATION, et al.,
Plaintiff is proceeding in this action in pro per. The matter was referred to a United States
Magistrate Judge as provided by Local Rule 302(c)(21).
On December 13, 2019, the magistrate judge filed findings and recommendations, which
were served on all parties and which contained notice to all parties that any objections to the
findings and recommendations were to be filed within twenty-one days. F&Rs, ECF No. 39.
Plaintiff has filed objections to the findings and recommendations, Obj., ECF No. 41, and
defendants have responded to the objections, ECF No. 42. The court has considered both parties’
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,
this court has conducted a de novo review of this case. Having reviewed the file, the court finds
the findings and recommendations to be supported generally by the record and by the proper
analysis. The court, however, is persuaded by defendants’ argument that the court should dismiss
the entire action with prejudice, see ECF No. 42 at 3-4 & n.1, and so orders below. Even if
defendant Marie Blake was properly served with summons, she is sued in her professional
capacity and plaintiff’s claims under 42 U.S.C. § 1983 are therefore barred by Eleventh
Amendment immunity. The state common law negligence and emotional distress claims are
barred for plaintiff’s failure to comply with the California Tort Claims Act.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed December 13, 2019, are adopted except that
plaintiff’s claims against defendant Marie Blake also are dismissed with prejudice as noted
2. Because no claims have been brought against defendants CDCR, Gates, and Cal-
OSHA, the Clerk of the Court shall acknowledge their termination from this case on the docket.
3. The motion to dismiss (ECF No. 31) is GRANTED and this case is DISMISSED with
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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