Faulkner, Jr. v. Phillips et al

Filing 27

ORDER (1) Adopting 26 Report and Recommendation (2) Granting 10 Motion for Summary Judgment and (3) Granting in Part 11 Motion to Dismiss. This Court adopts the R&R in its entirety. Defendants Buck and Farias's motion for summary judgment is granted. Because the Court grants their motion for summary judgment, the motion to dismiss is denied as moot as to Defendants Buck and Farias, but granted as to Defendants Phillips and Posner. Because Plaintiff's individual capacity claims ag ainst Defendants Posner and Phillips remain pending, pursuant to Federal Rule of Civil Procedure 12(a)(1)(C), Defendants Phillips and Posner shall file their Answer to the Complaint within 21 days of the filing of this Order. Signed by Judge Dana M. Sabraw on 1/11/2017.(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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ORDER (1) ADOPTING REPORT
AND RECOMMENDATION (2)
GRANTING MOTION FOR
SUMMARY JUDGMENT AND (3)
GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS

Plaintiff,

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Case No. 16-cv-0063 DMS (WVG)

KENNETH L. FAULKNER, JR.,

v.
KEN PHILLIPS ET AL.,
Defendants.

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On January 8, 2016, Plaintiff Kenneth L. Faulkner, Jr., a state prisoner

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proceeding pro se, filed a Complaint pursuant to 42 U.S.C. § 1983. On July 11,

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2016, Defendants filed a motion to dismiss, and Defendants Buck and Farias also

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filed a motion for summary judgment.

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On December 2, 2016, Magistrate Judge William V. Gallo issued a Report

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and Recommendation (“R&R”), recommending that the Court grant the motion for

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summary judgment for failure to exhaust administrative remedies, and grant in part

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and deny in part the motion to dismiss.

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recommended the Court grant the motion to dismiss Plaintiff’s official capacity and

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injunctive relief claims against all Defendants and qualified immunity claims against

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Defendants Buck and Farias, and deny the motion insofar as it argues Plaintiff’s

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claims arising out of the disciplinary hearing are barred by Heck v. Humphrey, 512

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U.S. 477 (1994).
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Specifically, the Magistrate Judge

16-cv-0063 DMS (WVG)

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The deadline for filing objections was December 28, 2016. No objections

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were filed, and neither party has requested additional time to do so. Consequently,

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the Court may adopt the R&R on that basis alone. See United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003). Nevertheless, having reviewed de novo the

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Magistrate Judge’s R&R, this Court adopts the R&R in its entirety. Defendants

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Buck and Farias’s motion for summary judgment is granted. Because the Court

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grants their motion for summary judgment, the motion to dismiss is denied as moot

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as to Defendants Buck and Farias, but granted as to Defendants Phillips and Posner.

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Because Plaintiff’s individual capacity claims against Defendants Posner and

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Phillips remain pending, pursuant to Federal Rule of Civil Procedure 12(a)(1)(C),

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Defendants Phillips and Posner shall file their Answer to the Complaint within 21

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days of the filing of this Order.

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IT IS SO ORDERED.
Dated: January 11, 2017
_____________________________
The Honorable Dana M. Sabraw
United States District Judge

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16-cv-0063 DMS (WVG)