Easter v. CDC et al

Filing 30

ORDER Adopting 29 Report and Recommendations, ORDER Granting in Part 15 Motion to Dismiss, ORDER Dismissing Claims: Plaintiff's claim for injunctive relief is moot because it is not available to him, and is therefore stricken. Signed by Judge Larry Alan Burns on 3/9/10.(All non-registered users served via U.S. Mail Service)(pdc) Modified to include text re stricken claim (pdc).

1 2 3 4 5 6 7 8 9 10 11 12 vs. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On March 18, 2009, Plaintiff, a prisoner proceeding pro se, filed his complaint seeking damages pursuant to 42 U.S.C. § 1983. Plaintiff was attacked by a group of fellow inmates and attacked a second time after, he alleges, Defendants failed to protect him. This suit is a continuation of an earlier suit that was dismissed to permit Plaintiff to exhaust is administrative remedies. Defendants then moved to dismiss all claims except Petitioner's Eighth Amendment claim based on Defendants' alleged deliberate indifference to Plaintiff's safety. This matter was referred to Magistrate Judge Ruben Brooks for a report and recommendation pursuant to pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.1(d). Following extensions of time to allow for briefing, Judge Brooks issued his report and recommendation (the "R&R"). The /// CDC, et al., Defendants. ORDER GRANTING IN PART MOTION TO DISMISS; AND ORDER DISMISSING CLAIMS CHARLES EASTER, Plaintiff, CASE NO. 09cv0555-LAB (RBB) ORDER ADOPTING REPORT AND RECOMMENDATION;

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

-1-

09cv0555

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

R&R permitted any party to file and serve written objections no later than February 26, 2010. Objections have not been received from either party. A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. §636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. §636(b)(1). Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations 328 F.3d 1114 de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 1121 (9th Cir. 2003) (en banc) (emphasis in original). The statutory provision does not require that the district court conduct some lesser review when no objections are filed. Thomas, 474 U.S. at 149­50 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions under a de novo or any other standard when neither party objects to those findings"). The Court has reviewed the R&R and it appears to be correct and its legal conclusions valid. The Court therefore ADOPTS the R&R. Defendants' Motion to Dismiss the monetary claims against Defendants Morris, Panichello, and Perez in their official capacities is GRANTED and these claims are DISMISSED without leave to amend. Supplemental state claims against Defendants in their official capacities are DISMISSED without leave to amend. Plaintiff's claim under the Fourteenth Amendment is DISMISSED without leave to amend because the allegations are preempted by the Eighth Amendment. Plaintiff's Fifth Amendment claim is DISMISSED with leave to amend his claim involving placement in administrative segregation, but without leave to amend his claim for violation /// /// /// -2-

09cv0555

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

of the prohibition against double jeopardy. Plaintiff's claim for injunctive relief is moot because it is not available to him, and is therefore STRICKEN. IT IS SO ORDERED. DATED: March 9, 2010

HO N O R AB LE LARRY ALAN BURNS United States District Judge

-3-

09cv0555