McKenney v. Hernandez et al

Filing 24

ORDER ADOPTING 22 REPORT AND RECOMMENDATIONS for 22 Report and Recommendation, and Granting In Part 19 Defendants' Motion to Dismiss First Amended Complaint: Defendants motion to dismiss Plaintiffs Eighth Amendment claim for excessive forc e is granted and the claim is DISMISSED WITHOUT LEAVE TO AMEND as to Defendant Hernandez only; Defendants motion to dismiss Plaintiffs Eighth Amendment claim for deliberate indifference to safety is granted and the claim is DISMISSED WITHOUT LEAVE TO AMEND as to Defendant Hernandez only; Defendants motion to dismiss Plaintiffs Eighth Amendment claim for deprivation of outdoor recreation is DENIED; and Defendants motion to dismiss Plaintiffs First Amendment claim for denial of meaningful access t o the courts is granted and the claim is DISMISSED WITH LEAVE TO AMEND as to Defendant Hernandez only. If Plaintiff chooses to amend the complaint, he must, no later than forty-five (45) days from the date this Order is "Filed," file a Second Amended Complaint which cures the deficiencies of pleading as stated in the Report and Recommendation. Signed by Judge M. James Lorenz on 7/7/2009. (All non-registered users served via U.S. Mail Service).(mjj) (av1).

1 2 3 4 5 6 7 8 9 10 11 JOE L. McKENNEY, JR., 12 13 v. 14 15 16 17 R. HERNANDEZ et al., Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 07cv1735-L(POR) ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff Joe L. McKenney, Jr., a state prisoner proceeding pro se and in forma pauperis,

18 filed this action under 42 U.S.C. § 1983 alleging numerous constitutional violations under the 19 Eighth Amendment, First Amendment and the Due Process Clause. The case was referred to 20 United States Louisa S. Porter for a report and recommendation in accordance with 28 U.S.C. 21 § 636(b)(1)(B) and Civil Local Rule 72.3. 22 On September 9, 2008 the court granted in part and denied in part Defendants' motion to

23 dismiss with leave to amend. Subsequently, Plaintiff filed a first amended complaint alleging an 24 Eighth Amendment claims based on excessive force, deliberate indifference to safety and 25 deprivation of outdoor recreation and a First Amendment claim for denial of meaningful access 26 to the courts. Defendants moved to dismiss these claims as to Defendant Robert J. Hernandez 27 pursuant to Federal Rule of Civil Procedure 12(b)(6). The Magistrate Judge issued a Report and 28 / / / / /
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1 Recommendation, recommending Defendants' motion to dismiss be denied in part and granted 2 in part with leave to amend. Plaintiff filed no objections. 3 A district judge may accept, reject, or modify the recommended decision on a dispositive

4 matter prepared by a magistrate judge proceeding without the consent of the parties for all 5 purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo 6 determination of those portions of the [report and recommendation] to which objection is 7 made." 28 U.S.C. § 636(b)(1). Section 636(b)(1) does not require some lesser review by the 8 district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The 9 "statute makes it clear that the district judge must review the magistrate judge's findings and 10 recommendations de novo if objection is made, but not otherwise." United States v. 11 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see 12 Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003). 13 In the absence of any objections, the court ADOPTS the Report and Recommendation.

14 Defendants' motion to dismiss is hereby GRANTED IN PART AND DENIED IN PART as 15 follows: 16 1. Defendants' motion to dismiss Plaintiff's Eighth Amendment claim for excessive force

17 is granted and the claim is DISMISSED WITHOUT LEAVE TO AMEND as to Defendant 18 Hernandez only; 19 2. Defendants' motion to dismiss Plaintiff's Eighth Amendment claim for deliberate

20 indifference to safety is granted and the claim is DISMISSED WITHOUT LEAVE TO 21 AMEND as to Defendant Hernandez only; 22 3. Defendants' motion to dismiss Plaintiff's Eighth Amendment claim for deprivation of

23 outdoor recreation is DENIED; and 24 4. Defendants' motion to dismiss Plaintiff's First Amendment claim for denial of

25 meaningful access to the courts is granted and the claim is DISMISSED WITH LEAVE TO 26 AMEND as to Defendant Hernandez only. 27 If Plaintiff chooses to amend the complaint, he must, no later than forty-five (45) days

28 from the date this Order is "Filed," file a Second Amended Complaint which cures the
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1 deficiencies of pleading as stated in the Report and Recommendation. Plaintiff's Second 2 Amended Complaint must be complete in itself without reference to the any complaint filed in 3 this action. See Civil Local Rule 15.1. Defendants not named and all claims not re-alleged in 4 the Second Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 5 F.2d 565, 567 (9th Cir. 1987). Defendants shall file a response as provided in Federal Rule of 6 Civil Procedure 15(a)(3). 7 8 9 DATED: July 7, 2009 10 11 12 COPY TO: M. James Lorenz United States District Court Judge IT IS SO ORDERED.

HON. LOUISA S. PORTER 13 UNITED STATES MAGISTRATE JUDGE 14 ALL PARTIES/COUNSEL 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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