Turner Jr. v. San Diego Central Jail et al

Filing 28

ORDER: The Report and Recommendation is adopted in its entirety. (Doc. 24 ). Defendant's motions to dismiss (Docs. 9 and 12 ) are granted and this action is dismissed without prejudice. Signed by Judge William Q. Hayes on 12/4/2013. (All non-registered users served via U.S. Mail Service - mailed to docket address: George Bailey Detention Facility, 446 Alta Rd. Ste. 5300, San Diego, CA 92158.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID B. TURNER, Jr.,

Civil No. 13cv1133-WQH

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Plaintiff,
vs.
SAN DIEGO CENTRAL JAIL;
CORPORAL SAUNDERS; DEPUTY
TORRES; SAN DIEGO COUNTY
SHERIFFS,

ORDER

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Defendant.
HAYES, Judge:
The matter before the Court is the review of the Report and Recommendation
(ECF No. 24) issued by the United States Magistrate Judge recommending that this
Court grant Defendants’ motions to dismiss (ECF Nos. 9 and 12).
I. Background
On May 10, 2013, Plaintiff filed a complaint against Defendants pursuant to 42
U.S.C. § 1983 alleging constitutional claims for actions which occurred on March 21,
2013, March 22, 2013 and April 7, 2013. (ECF No.1). All actions are alleged to have
occurred while Plaintiff was incarcerated at the San Diego Central Jail. Plaintiff alleges
claims for excessive force, deliberate indifference to medical needs, and denial of right
to religious services.
Defendants move to dismiss the complaint on the grounds that Plaintiff failed to
exhaust administrative remedies prior to filing this action. Defendants further contend
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13cv1133-WQH

1 that the claim for excessive force is barred on the grounds that Plaintiff cannot
2 collaterally attack his conviction for unlawfully resisting or preventing deputies from
3 performing their duties on March 21, 2013 in this action under 42 U.S.C. § 1983.
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On September 6, 2013, the Court provided Plaintiff with notice of the motion to

5 dismiss for failure to exhaust pursuant to Wyatt v. Terhune providing Plaintiff with
6 additional time to file a response to the motions to dismiss. (ECF No. 23).
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Plaintiff did not file any response to the motions to dismiss.

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On October 8, 2013, the Magistrate Judge issued the Report and

9 Recommendation, recommending that Defendants’ motions to dismiss be granted.
10 (ECF No. 24).

The Report and Recommendation concluded: “IT IS HEREBY

11 ORDERED that no later than November 8, 2013, after receiving a copy of this Report
12 and Recommendation, any party to this action may file written objections with the
13 Court and serve a copy on all parties.” Id. at 7.
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Neither party filed objections to the Report and Recommendation.

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Review of the Report and Recommendation

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

17 of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28
18 U.S.C. § 636(b)(1). When a party objects to a report and recommendation, “[a] judge
19 of the [district] court shall make a de novo determination of those portions of the [report
20 and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). When no
21 objections are filed, the district court need not review the report and recommendation
22 de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en
23 banc). A district court may “accept, reject, or modify, in whole or in part, the findings
24 or recommendations made by the magistrate judge.” Fed. R. Civ. P. 72(b); see also 28
25 U.S.C. § 636(b)(1).
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Neither party objected to the Report and Recommendation, and the Court has

27 reviewed the Report and Recommendation in its entirety. The Magistrate Judge
28 correctly recommended: “Without any facts or evidence to indicate Plaintiff followed
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13cv1133-WQH

1 the required procedures and exhausted his claims prior to filing the action, Defendants’
2 nonenumerated 12(b) motions be GRANTED because pursuant to the [Prison Litigation
3 Reform Act of 1995], exhaustion is mandatory.” (ECF No. 24 at 7).
4 IV.

Conclusion

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IT IS HEREBY ORDERED that the Report and Recommendation is ADOPTED

6 in its entirety. (ECF No. 24)
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IT IS FURTHER ORDERED that Defendant’s motions to dismiss (ECF Nos. 9

8 and 12) are granted and this action is dismissed without prejudice.
9 DATED: December 4, 2013
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WILLIAM Q. HAYES
United States District Judge

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