Duran v. Mandujano et al

Filing 106

ORDER (1) Adopting 104 Magistrate Judge's Report and Recommendation and (2) Granting 91 Motion to Dismiss for Failure to State a Claim. This Court, having reviewed de novo the Magistrate Judges R&R and the objections thereto, adopts the Mag istrate Judge's recommendation and GRANTS the Motion to Dismiss for Failure to State a Claim. The Court finds no basis for a certificate of appealability. The Clerk of Court shall enter judgment accordingly. Signed by Judge Dana M. Sabraw on 10/11/2017.(All non-registered users served via U.S. Mail Service)(aef)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID B. DURAN, Plaintiff, 12 v. 13 14 OMAR MANDUJO, et al., Defendants. 15 Case No. 15-cv-2745 DMS (WVG) ORDER (1) ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND (2) GRANTING MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [ECF NOS. 91, 104] 16 17 18 On December 7, 2015, Plaintiff David B. Duran, a state prisoner proceeding 19 pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. § 20 1983. On May 19, 2017, Plaintiff filed his Fourth Amended Complaint (“FAC”). 21 On June 2, 2017, Defendants Larry Lewis and Jonta Yancy filed a Motion to Dismiss 22 for Failure to State a Claim. On August 31, 2017, Magistrate Judge William V. 23 Gallo issued a Report and Recommendation (“R&R”), recommending that the Court 24 grant the motion. Plaintiff filed objections to the R&R. Defendants did not file a 25 reply. 26 This Court, having reviewed de novo the Magistrate Judge’s R&R and the 27 objections thereto, adopts the Magistrate Judge’s recommendation and GRANTS 28 –1– 15-cv-2745 DMS (WVG) 1 the Motion to Dismiss for Failure to State a Claim. 1 The Court finds no basis for a 2 certificate of appealability. The Clerk of Court shall enter judgment accordingly. IT IS SO ORDERED. 3 4 Dated: October 11, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court notes the claim provision of Cal. Gov. Code § 911.2 is inoperative in an action brought under 42 U.S.C. § 1983, and the fact that Plaintiff did not allege compliance with that provision is irrelevant to his claim under the Civil Rights Act. See Williams v. Horvath, 16 Cal. 3d 834 (Cal. 1976); Toscano v. Cty. of L.A., 92 Cal. App. 3d 775, 784 (Cal. Ct. App. 1979). Here, Plaintiff expressly pleads only a claim under § 1983. To the extent the Magistrate Judge construes the FAC to include a claim for battery or assault, as he does in section IV(B)(v) Statute of Limitations, the Court agrees with the Magistrate Judge’s analysis in section IV(B)(iv) California Government Claims Act. –2– 15-cv-2745 DMS (WVG)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?