McKenney v. Hernandez et al

Filing 99

ORDER adopting re 95 Report and Recommendation and denying 72 defendants' Motion to Dismiss plaintiff's eighth amended claim. Signed by Judge M. James Lorenz on 6/15/2011. (All non-registered users served via U.S. Mail Service)(mtb)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11 JOE L. McKENNEY, JR.,
Plaintiff,

12
13 v.
14

R. HERNANDEZ et al.,
15
Defendants.
16
17

)
)
)
)
)
)
)
)
)
)
)

Civil No. 07cv1735-L(POR)
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DENYING DEFENDANTS’ MOTION
TO DISMISS PLAINTIFF’S EIGHTH
AMENDMENT CLAIM

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 Magistrate Judge Louisa S. Porter for a report and recommendation in accordance
21 with 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3.
22

In the first amended complaint, the operative complaint in this action, Plaintiff alleged

23 Eighth Amendment claims based on excessive force, deliberate indifference to safety and
24 deprivation of outdoor recreation, and a First Amendment claim for denial of meaningful access
25 to the courts. Defendants moved to dismiss the Eighth Amendment claim for deprivation of
26 outdoor exercise based on failure to exhaust administrative remedies. The Magistrate Judge
27 issued a Report and Recommendation, recommending Defendants’ motion to dismiss be denied.
28 Defendants filed no objections.
07cv1735

1

A district judge may accept, reject, or modify the recommended decision on a dispositive

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

In the absence of any objections, the court ADOPTS the Report and Recommendation.

12 Defendants’ motion to dismiss is hereby DENIED.
13

IT IS SO ORDERED.

14
15 DATED: June 15, 2011
16
M. James Lorenz
United States District Court Judge

17
COPY TO:
18
HON. LOUISA S. PORTER
19 UNITED STATES MAGISTRATE JUDGE
20 ALL PARTIES/COUNSEL
21
22
23
24
25
26
27
28

2

07cv1735