Davis v. Paramo et al

Filing 78

ORDER ADOPTING REPORT AND RECOMMENDATION. The case continues against Defendants Silva and Pasha. Signed by Judge Roger T. Benitez on 7/10/2017.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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DOYLE WAYNE DAVIS,
CDCR #34318,

ORDER ADOPTING REPORT AND
RECOMMENDATION

Plaintiff,

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Case No.: 3:16-cv-0689-BEN-JMA

vs.

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DANIEL PARAMO, Warden, et al.,
Defendants.

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Plaintiff Doyle Wayne Davis is incarcerated at Richard J. Donovan Correctional

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Facility (“RJD”) in San Diego. He is proceeding pro se and has filed a complaint

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pursuant to 42 U.S.C. § 1983. Presently before the Court are motions to dismiss filed by

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Defendant Zamudio (ECF No. 22), Defendant Butcher (ECF No. 24), Defendants Silva,

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Jackson, Pasha, Walker, Rodriguez, Self, Pool, Glynn, Sosa, Paramo, Roberts, and Stout

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(ECF No. 46), and Defendant Bedane (ECF No. 61).

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On June 13, 2017, the Honorable Jan M. Adler issued a thoughtful and thorough

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Report and Recommendation, recommending that this Court grant in part and deny in

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part Defendants’ motions to dismiss. (ECF No. 76). Any of the parties could file
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3:16-cv-0689-BEN-JMA

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objections to the Report and Recommendation by July 5, 2017. That deadline has now

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passed and no party has filed objections.

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A district judge “may accept, reject, or modify the recommended disposition” of a

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magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.

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§ 636(b)(1). “[T]he district judge must determine de novo any part of the [report and

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recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

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However, “[t]he statute makes it clear that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not otherwise.”

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also

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Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). “Neither the Constitution nor

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the statute requires a district judge to review, de novo, findings and recommendations

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that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121.

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The Court has considered and agrees with the Report and Recommendation. The

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Court ADOPTS the Report and Recommendation in its entirety. (Docket No. 76). The

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Court orders as follows:

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1. Defendant Zamudio’s motion to dismiss is GRANTED. (ECF No. 22);

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2. Defendant Butcher’s motion to dismiss is DENIED with respect to his

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argument that he is not a state actor and that Plaintiff’s first, third, and fourth

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claims are time-barred by the statute of limitations, but GRANTED on the

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ground that Plaintiff has failed to state a claim upon which relief can be granted.

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(ECF No. 24); and

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3. Defendants Silva, Jackson, Pasha, Walker, Rodriguez, Self, Pool, Glynn, Sosa,

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Paramo, Roberts, Stout, and Bedane’s motions to dismiss are DENIED as to

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their argument that Plaintiff’s complaint is barred by claim preclusion. (ECF

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Nos. 46, 61). However, moving Defendants Jackson, Walker, Rodriguez, Self,

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Pool, Glynn, Sosa, Paramo, Roberts, Stout, and Bedane’s motions to dismiss are

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GRANTED on the ground that Plaintiff has failed to state a claim upon which

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relief can be granted. (ECF Nos. 46, 61).
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3:16-cv-0689-BEN-JMA

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The case continues against Defendants Silva and Pasha.

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IT IS SO ORDERED.

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Dated: July 10, 2017

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3:16-cv-0689-BEN-JMA