Booth v. Neotti et al

Filing 45

ORDER: The Report and Recommendation (Doc. 44 ) is adopted in its entirety. The Motion for Leave to File Amended Complaint filed by Plaintiff Michael Booth (Doc. 35 ) is granted. Plaintiff shall file the Second Amended Complaint attached to his motion (Doc. 35 -3) within ten days of the date of this order. Signed by Judge William Q. Hayes on 4/16/2012. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL J. BOOTH,

CASE NO. 10cv1236-WQH-NLS

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ORDER

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Plaintiff,
vs.
GEORGE NEOTTI, Warden; JOHN
DOE, Supervisor and Correctional
Officer; R. BOLDING, Correctional
Officer; T. ARMSTEAD, Correctional
Officer,

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Defendants.

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HAYES, Judge:

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The matter before the Court is the Motion for Leave to File Amended Complaint filed

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by Plaintiff Michael Booth (ECF No. 35) and the Report and Recommendation issued by

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Magistrate Judge Nita L. Stormes recommending that the motion be granted (ECF No. 44).

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BACKGROUND

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On June 10, 2010, Plaintiff initiated this action by filing a Complaint pursuant to 42

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U.S.C. § 1983. (ECF No. 1). On October 15, 2010, Plaintiff filed a First Amended Complaint

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(“Complaint”). (ECF No. 2). The Complaint relates to treatment Plaintiff alleges to have

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received while incarcerated at R. J. Donovan Correctional Facility in San Diego, California.

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On February 17, 2012, Plaintiff filed a motion for leave to file an amended complaint,

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“in order to name proper defendants who were not named in the [Complaint], dismiss

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incorrectly named defendants from the litigation, dismiss the alleged intentional infliction of
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emotional distress claims, and add the claim of negligent infliction of emotional distress

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against all defendants.” (ECF No. 35-1 at 1). Defendants have not filed any opposition.

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On March 26, 2012, the Magistrate Judge issued a Report and Recommendation

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recommending that the motion for leave to file an amended complaint be granted. (ECF No.

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44). The Magistrate Judge ordered that “[a]ny party may file written objections with the Court

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and serve a copy on all parties on or before April 9, 2012.... Any response to the objections

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shall be filed and served on or before April 16, 2012.” (ECF No. 44 at 3). To date, no

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objections have been filed by any party.
REVIEW OF THE REPORT AND RECOMMENDATION

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The duties of the district court in connection with a report and recommendation of a

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magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b).

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The district judge must “make a de novo determination of those portions of the report ... to

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which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings

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or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The district court need not

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review de novo those portions of a report and recommendation to which neither party objects.

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See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d

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1114, 1121-22 (9th Cir. 2003) (en banc).

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The Court has reviewed de novo the record and submissions in this case. The

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Magistrate Judge correctly stated that“[l]eave to amend should be freely given ‘when justice

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so requires.’” (ECF No. 44 at 2). The Magistrate Judge correctly stated that “Five factors are

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taken into account to assess the propriety of a motion for leave to amend: bad faith, undue

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delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has

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previously amended the complaint.” Id. The Magistrate Judge correctly found that there was

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no bad faith, undue delay, prejudice to parties, or futility in Plaintiff’s motion for leave to

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amend the Complaint. The Magistrate Judge correctly concluded that “Plaintiff should be

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granted leave to amend, as justice so requires.” Id.

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CONCLUSION

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IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 44) is

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ADOPTED in its entirety. The Motion for Leave to File Amended Complaint filed by Plaintiff

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Michael Booth (ECF No. 35) is GRANTED. Plaintiff shall file the Second Amended

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Complaint attached to his motion (ECF No. 35-3) within ten days of the date of this order.

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DATED: April 16, 2012

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WILLIAM Q. HAYES
United States District Judge

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