Sekerke v. Gonzalez et al

Filing 111

ORDER Adopting 108 Report and Recommendation Re Plaintiff's 88 Motion for to Reinstate Dismissed Defendant. It is ordered, the court adopts Magistrate Judge Gallo's Report and Recommendation and denies with prejudice Plaintiff's 88 Motion to Reinstate Dismissed Defendant Lisa Stark. Signed by Judge Janis L. Sammartino on 2/20/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH WAYNE SEKERKE, Case No.: 15-CV-573-JLS (WVG) Plaintiff, 12 13 14 ORDER ADOPTING REPORT AND RECOMMENDATION RE PLAINTIFF’S MOTION TO REINSTATE DISMISSED DEFENDANT v. SHERIFF DEPUTY GONZALEZ; DEPUTY JOHN DOE; LISA GUIGUITE STARK, DDA; JOHN AND JANE DOES, DDA, et al., 15 16 (ECF Nos. 88, 108) Defendants. 17 18 19 Presently before the Court is Plaintiff’s Motion to Reinstate Dismissed Defendant 20 Lisa Stark, (“MTN,” ECF No. 88). Also before the Court is Lisa Stark’s Response in 21 Opposition to the Motion, (ECF No. 92), and Plaintiff’s Reply in Support of the Motion, 22 (ECF No. 97). 23 Recommendation advising the Court to deny Plaintiff’s Motion, (“R&R,” ECF No. 108). 24 PROCEDURAL BACKGROUND 25 26 27 28 Magistrate Judge William V. Gallo’s has issued a Report and Judge Gallo provides an accurate summary of the relevant procedural background to the present Motion: On March 12, 2015, Plaintiff, proceeding pro se and in forma pauperis, filed a Civil Rights Complaint pursuant to 42 U.S.C. Section 1983. (ECF No. 1 15-CV-573-JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 1.) On July 31, 2015, Stark filed a Motion to Dismiss the Complaint pursuant to Rule 12(b)(6). (ECF No. 11.) This Court filed a Report and Recommendation (“R&R”) recommending Stark be dismissed from the case. (ECF No. 21.) Plaintiff did not file an objection to this R&R. On March 18, 2016, The Honorable Janis L. Sammartino adopted the R&R and dismissed Stark without prejudice. (ECF No. 32.) On July 19, 2016, Plaintiff filed a First Amended Complaint and again named Stark as a defendant. (ECF No. 42.) On August 2, 2016, Stark filed another Motion to Dismiss pursuant to Rule 12(b)(6). (ECF No. 44.) On December 1, 2016, the parties filed a Joint Motion to Dismiss Stark pursuant to Rule 41(a). (ECF No. 58.) On December 2, 2016, Judge Sammartino dismissed Stark without prejudice. (ECF No. 59.) On May 30, 2017, Plaintiff filed the instant Motion, requesting the court reinstate Stark as a defendant. (R&R 1–2.) 12 LEGAL STANDARD 13 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 14 court’s duties in connection with a magistrate judge’s R&R. The district court must “make 15 a de novo determination of those portions of the report or specified proposed findings or 16 recommendations to which objection is made,” and “may accept, reject, or modify, in 17 whole or in part, the findings or recommendations made by the magistrate judge.” 28 18 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United 19 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely 20 objection, the Court “need only satisfy itself that there is no clear error on the face of the 21 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 22 note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 23 ANALYSIS 24 Judge Gallo analyzes Federal Rule of Civil Procedure 60(b) and finds no reason the 25 Court should relieve Plaintiff from the judgment dismissing Stark from this case. (See 26 generally R&R.) Judge Gallo found Plaintiff’s Motion to be a “thinly veiled attempt to 27 reopen discovery” and recommends the Court deny Plaintiff’s Motion with prejudice. (Id. 28 at 4–5.) 2 15-CV-573-JLS (WVG) 1 No Party timely objected to Magistrate Judge Gallo’s R&R. (See R&R 5 (requiring 2 objections to be filed by February 9, 2018).) The Court finds that the R&R is well reasoned 3 and contains no clear error. 4 Accordingly, the Court hereby: 5 (1) ADOPTS Magistrate Judge Gallo’s R&R; and 6 (2) DENIES Plaintiff’s Motion to Reinstate Dismissed Defendant Lisa Stark WITH 7 PREJUDICE. 8 IT IS SO ORDERED. 9 Dated: February 20, 2018 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 15-CV-573-JLS (WVG)

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