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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KEITH WAYNE SEKERKE,

Case No.: 15-CV-573-JLS (WVG)
Plaintiff,

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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.,

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(ECF Nos. 88, 108)

Defendants.

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Presently before the Court is Plaintiff’s Motion to Reinstate Dismissed Defendant

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Lisa Stark, (“MTN,” ECF No. 88). Also before the Court is Lisa Stark’s Response in

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Opposition to the Motion, (ECF No. 92), and Plaintiff’s Reply in Support of the Motion,

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(ECF No. 97).

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Recommendation advising the Court to deny Plaintiff’s Motion, (“R&R,” ECF No. 108).

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PROCEDURAL BACKGROUND

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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.
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15-CV-573-JLS (WVG)

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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.)

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LEGAL STANDARD

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

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court’s duties in connection with a magistrate judge’s R&R. The district court must “make

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a de novo determination of those portions of the report or specified proposed findings or

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recommendations to which objection is made,” and “may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the magistrate judge.” 28

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U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United

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

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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

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

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ANALYSIS

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Judge Gallo analyzes Federal Rule of Civil Procedure 60(b) and finds no reason the

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Court should relieve Plaintiff from the judgment dismissing Stark from this case. (See

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generally R&R.) Judge Gallo found Plaintiff’s Motion to be a “thinly veiled attempt to

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reopen discovery” and recommends the Court deny Plaintiff’s Motion with prejudice. (Id.

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at 4–5.)
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15-CV-573-JLS (WVG)

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No Party timely objected to Magistrate Judge Gallo’s R&R. (See R&R 5 (requiring

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objections to be filed by February 9, 2018).) The Court finds that the R&R is well reasoned

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and contains no clear error.

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Accordingly, the Court hereby:

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(1) ADOPTS Magistrate Judge Gallo’s R&R; and

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(2) DENIES Plaintiff’s Motion to Reinstate Dismissed Defendant Lisa Stark WITH

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PREJUDICE.

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IT IS SO ORDERED.

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Dated: February 20, 2018

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15-CV-573-JLS (WVG)