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)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID B. DURAN,
Plaintiff,

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v.

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OMAR MANDUJO, et al.,
Defendants.

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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]

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On December 7, 2015, Plaintiff David B. Duran, a state prisoner proceeding

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pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. §

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1983. On May 19, 2017, Plaintiff filed his Fourth Amended Complaint (“FAC”).

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On June 2, 2017, Defendants Larry Lewis and Jonta Yancy filed a Motion to Dismiss

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for Failure to State a Claim. On August 31, 2017, Magistrate Judge William V.

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Gallo issued a Report and Recommendation (“R&R”), recommending that the Court

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grant the motion. Plaintiff filed objections to the R&R. Defendants did not file a

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reply.

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This Court, having reviewed de novo the Magistrate Judge’s R&R and the

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objections thereto, adopts the Magistrate Judge’s recommendation and GRANTS

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15-cv-2745 DMS (WVG)

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the Motion to Dismiss for Failure to State a Claim. 1 The Court finds no basis for a

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certificate of appealability. The Clerk of Court shall enter judgment accordingly.
IT IS SO ORDERED.

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Dated: October 11, 2017

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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.
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15-cv-2745 DMS (WVG)