Davis v. Powell et al

Filing 36

ORDER (1) ADOPTING 35 REPORT AND RECOMMENDATION; and (2) granting in part and denying in part Defendants' 30 Motion to Dismiss. Signed by Judge Cathy Ann Bencivengo on 10/04/12.(All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JIM DALE DAVIS,

Civil No.
Plaintiff,

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ORDER (1) ADOPTING REPORT AND
RECOMMENDATION AND (2)
GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION TO
DISMISS
[Doc. Nos. 30, 35]

v.
R. POWELL, T. BOREM, L. SMALL, K. OURS,
Defendant.

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10cv1891-CAB (RBB)

On October 6, 2011, plaintiff filed a Second Amended Complaint (“SAC”). [Doc. No. 29.] On

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October 13, 2011, defendants filed a motion to dismiss the SAC. [Doc. No. 30.] On October 31, 2011,

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Plaintiff filed an opposition to the motion to dismiss. [Doc. No. 31.] On November 7, 2011, Defendants

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filed a reply to the opposition. [Doc. No. 33.] On July 25, 2012, Magistrate Judge Brooks prepared a

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Report and Recommendation (“Report”) recommending that the motion to dismiss the SAC be granted

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in part and denied in part. [Doc. No. 35.] The Report also ordered that any objections were to be filed by

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August 24, 2012. [Report at 71.] To date, no objection has been filed, nor have there been any requests

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for an extension of time in which to file an objection.

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A district court’s duties concerning a magistrate judge’s report and recommendation and a

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respondent’s objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28

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U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the

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magistrate judge’s report and recommendation. The Court reviews de novo those portions of the Report

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and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept,
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reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”

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Id. However, “[t]he statute makes it clear that the district judge must review the magistrate judge's

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findings and recommendations de novo if objection is made, but not otherwise.” United States v.

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Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original). “Neither the

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Constitution nor the statute requires a district judge to review, de novo, findings and recommendations

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that the parties themselves accept as correct.” Id. In the absence of timely objection, the Court “need

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only satisfy itself that there is no clear error on the face of the record in order to accept the

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recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbel v. U.S. Dist. Court,

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501 F.2d 196, 206 (9th Cir. 1974)).

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Here, neither party has timely filed objections to the Report. Having reviewed it, the Court finds

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that it is thorough, well reasoned, and contains no clear error. Accordingly, the Court hereby (1)

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ADOPTS Magistrate Judge Brooks’ Report and Recommendation; and (2) GRANTS IN PART AND

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DENIES IN PART Defendants’ motion to dismiss the SAC as set forth below.

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Per Magistrate Judge Brook’s Report and Recommendation, the Court ORDERS AS
FOLLOWS:

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(1) Plaintiff’s references to violations of the California Code of Regulations are not separate

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causes of action. Therefore, Defendants’ motion to dismiss this portion of count two is GRANTED

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without leave to amend.

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(2) Plaintiff improperly includes several new causes of action in count two of his SAC. First, an

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amendment to include a retaliation claim in count two against Defendant Small for the addendum he

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approved on September 16, 2009, would not clearly be futile. This retaliation claim is properly asserted.

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Defendant Small’s motion to dismiss this claim is DENIED. A retaliation claim against Defendant

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Small for the October 25, 2010 policy, however, would be futile; this claim shall not be considered.

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Therefore, Defendant Small’s motion to dismiss this claim is GRANTED without leave to amend.

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(3) Retaliation claims against Defendants Powell, Borem, and Ours for the September 2009 and

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October 2010 policies would also be futile. Their motion to dismiss both retaliation claims against them

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is GRANTED without leave to amend.

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(4) Defendants Powell, Borem, and Ours’s motion to dismiss the conspiracy causes of action
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against them in count two is GRANTED without leave to amend; an amendment to include a conspiracy

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claim against Defendant Small would be futile, and the conspiracy claim against him is DISMISSED

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without leave to amend.

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(5) Defendant Small’s motion to dismiss the equal protection claim in count two regarding the

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September 16, 2009 policy addendum is DENIED. An amendment to include an equal protection claim

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against Powell, Borem, and Ours for this policy would be futile and is DISMISSED without leave to

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amend. Likewise, an amendment to include an equal protection cause of action against all Defendants

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based on the October 25, 2010 policy would be futile and is DISMISSED without leave to amend.

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(6) The motion to dismiss the First Amendment and RLUIPA causes of action against all

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Defendants in count one is DENIED; in count two, the Defendants’ motion to dismiss the First

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Amendment and RLUIPA claims is GRANTED without leave to amend.

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(7) All of the Defendants are entitled to qualified immunity for the First Amendment claims

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against them in count two, and their motion to dismiss Plaintiff’s claim for civil damages on this basis is

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GRANTED. The Defendants are not, however, entitled to qualified immunity as to the First

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Amendment allegations in count one, and their motion to dismiss on this basis is DENIED.

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(8) Defendant Ours, Powell, and Borem’s motion to dismiss Plaintiff’s claim for civil damages

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for the equal protection violation alleged in count two on qualified immunity grounds is GRANTED.

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Defendant Small is not immune from damages attributable to the equal protection claim against him in

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count two for the September 2009 policy. His motion to dismiss on this ground is DENIED. Defendant

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Small is, however, entitled to qualified immunity for the equal protection claim against him in count

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two, focusing on the October 2010 addendum, and his motion to dismiss Plaintiff’s claim for civil

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damages for this claim is GRANTED.

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IT IS SO ORDERED.

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DATED: October 4, 2012

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CATHY ANN BENCIVENGO
United States District Judge

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