Carson v. Martinez et al

Filing 27

ORDER (1) Adopting 26 Report and Recommendation, and (2) Dismissing Complaint re 18 Motion to Dismiss. It is ordered that Plaintiff's c omplaint is dismissed without prejudice unless otherwise noted by Judge Major's R&R as adop ted by the Court, (see, e.g., R&R 89 (dismissing Plaintiffs claims against Defendants Seibel and Bracamonte without leave to amend because Plaintiff concedes his claims against those Defendants should be dismissed)). Accordingly, Plaintiff shal l file an amended complaint, if any, on or before thirty days from the date on which this Order is electronically docketed. Failure to file an amended complaint by this deadline may result in a dismissal of these claims for failure to prosecute. Signed by Judge Janis L. Sammartino on 8/3/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID VINCENT CARSON,
CDCR #J-19886,

Case No.: 3:16-cv-1736-JLS-BLM
ORDER (1) ADOPTING REPORT
AND RECOMMENDATION, AND (2)
DISMISSING COMPLAINT

Plaintiff,

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vs.

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(ECF Nos. 18, 26)
F. MARTINEZ, et al.
Defendants.

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Presently before the Court is Judge Barbara L. Major’s Report and Recommendation

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(“R&R”) on Defendants G. Casian, M.D., C. Godinez, A. Larocco, D. Garcia, D. Arguilez,

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K. Seibel, F. Martinez, A. Silva, and P. Bracamonte’s Motion to Dismiss Plaintiff’s

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Complaint. (ECF No. 26.) No party filed an objection or reply to Judge Major’s R&R. For

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the following reasons the Court (1) ADOPTS Judge Major’s R&R with certain

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modifications, and (2) DISMISSES Plaintiff’s Complaint.

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3:16-cv-1736-JLS-BLM

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BACKGROUND

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Judge Major’s R&R contains a thorough and accurate recitation of the factual and

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procedural histories underlying the instant Motion to Dismiss. (See R&R 1–5.1) This Order

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incorporates by reference the background as set forth therein.

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LEGAL STANDARD

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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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court’s duties regarding a magistrate judge’s report and recommendation. The district court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United

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States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely objection,

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however, “the Court need only satisfy itself that there is no clear error on the face of the

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record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s

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note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)).

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ANALYSIS

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As discussed, neither Plaintiff nor moving Defendants filed an objection or reply to

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Judge Major’s R&R. And after review of the moving papers and Judge Major’s R&R the

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Court finds “that there is no clear error on the face of the record” and thus the Court may

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“accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing

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Campbell, 510 F.2d at 206). Accordingly, the Court ADOPTS Judge Major’s R&R and

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GRANTS Defendants’ Motion to Dismiss (ECF No. 18). However, while Judge Major

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recommends that the Court dismiss with prejudice Plaintiff’s Eighth Amendment claim

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against Defendant Arguilez, (see R&R 15), and his First Amendment retaliation claim

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against Defendant Nevarez, (id. at 18), the Court will allow Plaintiff an opportunity to re-

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Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each
page.

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3:16-cv-1736-JLS-BLM

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plead these claims with additional factual allegations that may be sufficient to state a claim.

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While the Court entertains serious doubts about Plaintiff’s ability to do so, the Court is

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mindful that it should grant leave to amend a complaint “unless the pleading could not

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possibly be cured by the allegation of other facts, and should be granted more liberally to

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pro se plaintiffs.” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (internal quotation

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marks omitted). This is particularly warranted in this case because the Court is dismissing

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Plaintiff’s first complaint, and he has not otherwise had an opportunity to amend.

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CONCLUSION

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For the foregoing reasons, the Court (1) ADOPTS Judge Major’s R&R with the

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above-mentioned modifications, and (2) DISMISSES Plaintiff’s Complaint. Plaintiff’s

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complaint is DISMISSED WITHOUT PREJUDICE unless otherwise noted by Judge

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Major’s R&R as adopted by the Court, (see, e.g., R&R 8–9 (dismissing Plaintiff’s claims

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against Defendants Seibel and Bracamonte without leave to amend because Plaintiff

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concedes his claims against those Defendants should be dismissed)). Accordingly, Plaintiff

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SHALL FILE an amended complaint, if any, on or before thirty days from the date on

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which this Order is electronically docketed. Failure to file an amended complaint by this

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deadline may result in a dismissal of these claims for failure to prosecute.

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IT IS SO ORDERED.
Dated: August 3, 2017

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3:16-cv-1736-JLS-BLM