Murillo v. Parkinson et al

Filing 54

ORDER Adopting Report and Recommendation to: (1) Denying Plaintiff's Request to Treat the Motion to Dismiss as a Motion for Summary Judgment; and (2) Grant Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (ECF Nos. 34 , 40 , 50 ). Signed by Judge Roger T. Benitez on 2/27/2013.(All non-registered users served via U.S. Mail Service)(knb)

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2013

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAMON MURILLO,

CASE NO. l1cv1687 BEN
(BGS)

Plaintiff,

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ORDER ADOPTING
REPORT AND
RECOMMENDATION TO:

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vs.

(1) DENY PLAINTIFF'S
R1r.QUEST TO TREAT THE
MOTION TO DISMISS AS A
MOTION FOR SUMMARY
JUDGMENT; AND

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P. FLOlJRNOY, et aI.,

(2) GRANT DEFENDANTS'

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MOTION TO DISMISS

Defendants.

PLAINTIFF'S FIRST
AMENDED COMPLAINT

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[ECF Nos. 34, 40, 50]

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Plaintiff, a prisoner proceeding pro se and informa pauperis, filed an amended

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civil rights complaint on November 29,2011. (ECF No. 10.) Defendants moved to

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dismiss on various grounds. (ECF No. 34.) On January 30, 2013, Magistrate Judge

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Bernard G. Skomal issued a Report and Recommendation recommending that

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Defendants' Motion to Dismiss be granted. (ECF No. 50.) Plaintiff moved for an

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extension oftime to file an Objection but the Court denied that request. (ECF Nos. 51,

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52.) No objections were filed by the February 18, 2013 deadline. For the reasons
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llcvl687

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stated below, the Court adopts the well-reasoned Report and Recommendation of the

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Magistrate Judge and grants Defendants' Motion to Dismiss.

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A district judge "may accept, reject, or modify the recommended decision" of a

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Magistrate Judge on a dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C.

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§636(b)(1). Moreover, the court shall make a de novo determination ofthose portions

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of the report and recommendation to which objection is made. FED. R. CIV. P. 72.

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"The statute makes it clear that the district judge must review the magistrate judge's

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findings and recommendations de novo

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Neither the Constitution nor the statute requires a district judge to review, de novo,

if objection is made, but not otherwise....

u.s. v.

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findings and recommendations that the parties themselves accept as correct."

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original).

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In the Report and Recommendation, Magistrate Judge Skomal correctly

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considered the Plaintiff's arguments and determined that Plaintiff failed to exhaust

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administrative remedies with respect to certain claims, and failed to adequately plead

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other claims.

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capacities are barred by the Eleventh Amendment. Accordingly, this Court ADOPTS

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in full the Report and Recommendation. Plaintiff s request for the Court to treat

Moreover, Plaintiffs claims against Defendants in their official

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Defendants' motion to dismiss is GRANTED.

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IT IS SO ORDERED.
DATED: Febru~t 2013

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llcv1687