Davis v. Powell et al

Filing 25

ORDER (1) ADOPTING 24 REPORT AND RECOMMENDATION and (2) granting 17 Defendant's Motion to Dismiss Complaint: Plaintiff's claims against Defendants Sutton, Butler, Builteman, Janda, and Foston in counts one and two are DISMISSED WITH PRE JUDICE; Plaintiff's claim against Defendant Small as to count two is DISMISSED WITHOUT PREJUDICE; Plaintiff's Religious Land Use and Institutionalized Persons Act of 2000 claims against Defendants Powell, Borem, and Ours are DISMISSED WITHO UT PREJUDICE; Plaintiff's RLUIPA claims against Defendants Small, Powell, Borem, and Ours, in their individual capacities, are DISMISSED WITHOUT PREJUDICE; and Plaintiff's RLUIPA claims for monetary damages against all Defendants in their o fficial and individual capacities are DISMISSED WITH PREJUDICE. Plaintiff's request to amend his First Amendment claims against the Defendants in counts one and two is GRANTED. Signed by Judge Janis L. Sammartino on 9/15/11.(All non-registered users served via U.S. Mail Service)(lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JIM DALE DAVIS,
CDCR #J-41150,

CASE NO. 10CV1891 JLS (RBB)
ORDER (1) ADOPTING REPORT
AND RECOMMENDATION AND
(2) GRANTING DEFENDANTS’
MOTION TO DISMISS
COMPLAINT

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Plaintiff,
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vs.

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R. POWELL; T. BOREM; KAY OURS;
LARRY SMALLS; R. SUTTON;
G.J. JANDA; C. BUTLER; BUILTMAN;
D. FOSTON,

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(ECF Nos. 17, 24)

Defendants.

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Presently before the Court is Defendants’R. Powell, T. Borem, Kay Ours, Larry Smalls, R.

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Sutton, G.J. Janda, C. Butler, Buildman, and D. Foston’s motion to dismiss complaint. (Mot. to

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Dismiss, ECF. No. 17). Also before the Court is Magistrate Judge Brooks’s report and

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recommendation, recommending the Court grant Defendants’ motion to dismiss complaint. (R&R,

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ECF No. 24)

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court’s

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duties in connection with a magistrate judge’s report and recommendation. The district court must

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“make a de novo determination of those portions of the report to which objection is made,” and

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“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76

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10cv1891

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(1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of

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timely objection, the Court “need only satisfy itself that there is no clear error on the face of the

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record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note

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(citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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Here, neither party has timely filed objections to the report and recommendation. Having

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reviewed it, the Court finds that it is thorough, well reasoned, and contains no clear error.

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Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Brooks’s report and

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recommendation; (2) GRANTS Defendants’ motion to dismiss complaint.

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Per Magistrate Judge Brooks’s report and recommendation, Plaintiff’s claims against

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Defendants Sutton, Butler, Builteman, Janda, and Foston in counts one and two are DISMISSED

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WITH PREJUDICE; Plaintiff’s claim against Defendant Small as to count two is DISMISSED

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WITHOUT PREJUDICE; Plaintiff’s Religious Land Use and Institutionalized Persons Act of

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2000 (“RLUIPA”) claims against Defendants Powell, Borem, and Ours are DISMISSED

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WITHOUT PREJUDICE; Plaintiff’s RLUIPA claims against Defendants Small, Powell, Borem,

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and Ours, in their individual capacities, are DISMISSED WITHOUT PREJUDICE; and

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Plaintiff’s RLUIPA claims for monetary damages against all Defendants in their official and

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individual capacities are DISMISSED WITH PREJUDICE.

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Finally, Plaintiff’s request to amend his First Amendment claims against the Defendants in
counts one and two is GRANTED.
IT IS SO ORDERED.

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DATED: September 15, 2011
Honorable Janis L. Sammartino
United States District Judge

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10cv1891