Coreno v. Armstrong et al

Filing 55

ORDER ADOPTING REPORT AND RECOMMENDATION 50 . The motion to dismiss for failure to exhaust is granted, but with leave to amend. The motion to dismiss Coreno's First Amendment claim for failure to state a legally cognizable claim is denied, but the motion to dismiss the claim for failure to exhaust is granted, with leave to amend. The motion to dismiss Coreno's First Amendment access to the courts claim for failure to state a legally cognizable claim is granted without prejudice. The m otion to dismiss Coreno's Fourteenth Amendment claim for failure to state a legally cognizable claim is granted, but without prejudice and with leave to amend. Signed by Judge Larry Alan Burns on 9/29/11.(All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSEPH CORENO,

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CASE NO. 09cv2504-LAB (POR)
Plaintiff,

ORDER ADOPTING REPORT
AND RECOMMENDATION

vs.
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MARC ARMSTRONG, et al.,
Defendant.

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Defendant George Neotti filed a motion to dismiss on December 15, 2010 that was

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referred to Magistrate Judge Porter for a Report and Recommendation. Neotti argues that

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Coreno failed to exhaust his administrative remedies, and that he simply fails to state a claim

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under the First, Eighth, or Fourteenth Amendments. Coreno did not oppose the motion, and

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on July 29, 2011 Judge Porter issued her R&R, which Coreno also failed to oppose.

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I.

Legal Standards

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This Court has jurisdiction to review the R&R pursuant to Rule 72 of the Federal Rules

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of Civil Procedure. “The district judge must determine de novo any part of the magistrate

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judge’s disposition that has been properly objected to. The district court may accept, reject,

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or modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).

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review the magistrate judge’s findings and recommendations de novo if objection is made,
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The district judge “must

09cv2504

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but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc).

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Because Coreno is a prisoner and is proceeding pro se, the Court construes his

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pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police

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Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). That said, “[p]ro se litigants must follow the same

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rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.

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1987). Among those rules is that the failure to oppose a motion (or the R&R recommending

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that the motion be granted) may be construed as consent to granting the motion.

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II.

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Conclusion
The Court has reviewed the R&R and finds that it thoroughly and commendably

covers the issues presented. It is hereby ADOPTED:

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The motion to dismiss for failure to exhaust is GRANTED, but with leave to amend.

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The motion to dismiss Coreno’s First Amendment claim for failure to state a legally

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cognizable claim is DENIED, but the motion to dismiss the claim for failure to exhaust is

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GRANTED, with leave to amend.

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The motion to dismiss Coreno’s First Amendment access to the courts claim for
failure to state a legally cognizable claim is GRANTED without prejudice.

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Finally, the motion to dismiss Coreno’s Fourteenth Amendment claim for failure to

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state a legally cognizable claim is GRANTED, but without prejudice and with leave to amend.

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IT IS SO ORDERED.
DATED: September 29, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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09cv2504