James v. Lee et al

Filing 161

ORDER: (1) Adopting the Report and Recommendation (Doc. NO. 159 ): and (2) Granting Defendant's Motion to Dismiss (Doc. No. 144 ). Signed by Judge Anthony J. Battaglia on 9/11/2020. (All non-registered users served via U.S. Mail Service)(jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KYLE ROBERT JAMES,

Case No.: 16-cv-01592-AJB (JLB),
consolidated with 17-cv-00859-AJB
(MDD)

Plaintiff,

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v.

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BARBARA LEE, et al.,

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ORDER:
Defendants.

(1) ADOPTING THE REPORT
AND RECOMMENDATION (Doc.
No. 159); AND

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(2) GRANTING DEFENDANT’S
MOTION TO DISMISS, (Doc. No.
144)

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Presently before the Court is Defendant Mark Kania’s (“Defendant”) motion to

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dismiss the Fifth Amended Complaint. (Doc. No. 144.) The Court referred this matter to

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Magistrate Judge Jill L. Burkhardt for a Report and Recommendation (the “R&R”), which

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was issued on August 1, 2020. (Doc. No. 159.) The R&R recommends that the Court: (1)

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grant in part and deny in part Defendant’s motion to dismiss; (2) grant Defendant’s

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motion to dismiss Plaintiff’s claims against Defendant in his official capacity; (3)

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grant Defendant’s motion to dismiss Plaintiff’s deliberate indifference to serious medical

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needs claim on the ground that Defendant is entitled to qualified immunity; and (4) deny

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Defendant’s motion to dismiss Plaintiff’s excessive force claim and Fourteenth
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16-cv-01592-AJB (JLB), consolidated with 17-cv-00859-AJB (MDD)

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Amendment claims for violation of bodily privacy and his right to be free from punishment.

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(Id. at 29.) The parties were instructed to file written objections to the R&R by August 21,

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2020, and a reply to the objections no later than September 4, 2020. (Id.)

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

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a de novo determination of those portions of the report . . . to which objection is made[,]”

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and “may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.” 28 U.S.C. § 636(b)(1); United States v. Remsing, 874 F.2d

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614, 617 (9th Cir. 1989). However, in the absence of objection(s), the Court “need only

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satisfy itself that there is no clear error on the face of the record in order to accept the

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recommendation.” Fed. R. Civ. P. 72(b) advisory committee note to the 1983 amendment;

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

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Neither party has filed objections to the R&R. Thus, having reviewed the R&R, the

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Court finds it thorough, well-reasoned, and contains no clear error. Accordingly, the Court

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hereby: (1) ADOPTS the R&R; (2) GRANTS Defendant’s motion to dismiss Plaintiff’s

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claims against Defendant in his official capacity; (3) GRANT Defendant’s motion

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to dismiss Plaintiff’s deliberate indifference to serious medical needs claim on the ground

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that Defendant is entitled to qualified immunity; and (4) DENY Defendant’s motion to

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dismiss Plaintiff’s excessive force claim and Fourteenth Amendment claims for violation

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of bodily privacy and his right to be free from punishment. (Doc. No. 159.)

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IT IS SO ORDERED.

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Dated: September 11, 2020

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16-cv-01592-AJB (JLB), consolidated with 17-cv-00859-AJB (MDD)