Lang v. Schwartz et al

Filing 56

ORDER ADOPTING 55 REPORT AND RECOMMENDATIONS and Granting 49 Motion to Dismiss: Since all claims in the Second Amended Complaint have now been dismissed, the Clerk shall close the file. Signed by Judge Janis L. Sammartino on 8/5/10.(All non-registered users served via U.S. Mail Service)(lmt)

-CAB Lang v. Schwartz et al

Doc. 56

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Presently before the Court is Magistrate Judge Cathy Ann Bencivengo's Report and Recommendation ("R&R") advising this Court to grant Defendants' motion to dismiss. (Doc. No. 55.) Plaintiff did not timely file objections. Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of a district court in connection with a magistrate judge's report and recommendation. "The district court must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the DANIEL J. LANG, vs. Plaintiff, CASE NO. 08-CV-238-JLS (CAB) ORDER: (1) ADOPTING REPORT AND RECOMMENDATION AND (2) GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. Nos. 49 & 55)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CANLAS, DOCTOR; ESCALANTE, CORRECTIONAL OFFICER (C/O); ALLAMBY, LIEUTENANT; WHITEHEAD, R.N.; M. RUIZ, DOCTOR; SINAGA, REGISTERED NURSE, Defendants.

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08cv238

Dockets.Justia.com

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record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). Since Plaintiff failed to timely object to Magistrate Judge Bencivengo's R&R, the Court need only ensure that it is not clearly erroneous given the record. Having done so, the Court finds Judge Bencivengo's opinion is thorough, well reasoned, and no contains no clear error. Therefore, the Court ADOPTS the R&R in full. The Court therefore GRANTS Defendants' motion to dismiss as follows: 1) the Eighth Amendment deliverate indifference claims in Cout One (and Count Two in the Form Complaint) against Defendants Canlas, Whitehead, and Escalante are DISMISSED WITH PREJUDICE; 2) the negligence claim (and all other state law claims) in Cout One (and Count Towo in the Form Complaint) against Defendants Canlas, Whitehead, and Escalante are DISMISSED WITHOUT PREJUDICE; 3) the claim for excessive force/First Amendment (and related federal and state law claims) in Count Three against defendants Escalante and Allamby are DISMISSED WITHOUT PREJUDICE; 4) the claim for retaliation (and related federal and state law claims) in Count Four against defendants Sinaga and Ruiz are DISMISSED WITHOUT PREJUDICE. Since all claims in the Second Amended Complaint have now been dismissed, the Clerk shall close the file. IT IS SO ORDERED.

DATED: August 5, 2010 Honorable Janis L. Sammartino United States District Judge

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08cv238