Jones v. Morrero et al

Filing 23

ORDER ADOPTING AS MODIFIED 22 REPORT AND RECOMMENDATION; Denying 7 Motion for TRO; Granting 18 Motion to Dismiss: Plaintiff may file an amended complaint in conformity with this Order on or before March 29, 2010. Signed by Judge M. James Lorenz on 2/18/2010.(All non-registered users served via U.S. Mail Service)(mjj) (mam).

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1 2 3 4 5 6 7 8 9 10 ANDRE JONES, 11 12 v. 13 CAPTAIN MORRERO; et al., 14 15 16 Defendant. Plaintiff, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv2316 L(WMc) ORDER ADOPTING AS MODIFIED THE REPORT AND RECOMMENDATION; DENYING MOTION FOR TRO [doc. #7]; GRANTING MOTION TO DISMISS ACTION [doc. #18] Plaintiff Andre Jones filed this action under 42 U.S.C. § 1983. The case was referred to 17 United States Magistrate Judge William McCurine, Jr. for a report and recommendation 18 ("Report") pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). The magistrate 19 judge recommended denial of the request for a TRO and dismissal of the case. Neither party 20 filed objections to the Report. 21 In reviewing a magistrate judge's report and recommendation, the district court "shall 22 make a de novo determination of those portions of the report . . . to which objection is made," 23 and "may accept, reject, or modify, in whole or in part, the findings or recommendations made 24 by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must 25 review the magistrate judge's findings and recommendations de novo if objection is made, but 26 not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 27 (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 28 08cv2316 1 2003) (applying Reyna-Tapia to habeas review). 2 Plaintiff alleges that correctional facility officials were deliberately indifferent to his 3 safety by failing to protect him from an attack by a documented enemy in violation of his Eighth 4 Amendment rights; defendants interfered with his right of access to the courts; and defendants 5 prevented him for having access to his personal property in violation of his due process rights. 6 The Report recommends dismissal of all of plaintiff's claims but does not indicate 7 whether the dismissal is with or without prejudice. Accordingly, the Report and 8 Recommendations is ADOPTED but with modifications. 9 10 11 12 13 14 15 16 17 18 19 5. 3. 4. 2. IT IS ORDERED defendants' motion to dismiss is GRANTED as follows: 1. Plaintiff's claim for violation of his right of access to the courts is dismissed without prejudice1; Plaintiff's claim for failure to protect is dismissed without prejudice as to defendants Goff, Homer and Cortez; Plaintiff's due process claim is dismissed with prejudice. Dismissal of plaintiff's claims against defendants in their official capacity is granted with prejudice and denied without prejudice as to claims brought in defendants' individual capacity; Dismissal of defendant Morrero is without prejudice. IT IS FURTHER ORDERED plaintiff's motion for temporary restraining order is 20 DENIED; 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 The Report states that plaintiff failed to "provide any evidence" as to his claim of access to the courts. (Report at 4.) Plaintiff must allege sufficient facts showing he has suffered 28 an actual injury but he is not required to provide evidence in his complaint. 27 2 08cv2316 1 1 IT IS FURTHER ORDERED that plaintiff may file an amended complaint in 2 conformity with this Order on or before March 29, 2010. 3 IT IS SO ORDERED. 4 DATED: February 18, 2010 5 6 7 8 COPY TO: 9 HON. WILLIAM McCURINE, JR. UNITED STATES MAGISTRATE JUDGE 10 11 ALL PARTIES/COUNSEL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 08cv2316 M. James Lorenz United States District Court Judge

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