Jackson v. Paramo et al

Filing 39

ORDER Adopting Report and Recommendation [Doc. No. 31 ]; Granting Motion to Dismiss with Respect to Defendant Paramo [Doc. No. 25 ]; Denying Motion for Judgment on Proceedings [Doc. No. 35 ]; and Granting Motion for Leave to Amend Complaint [Doc. No. 37 ]. Signed by Judge Cathy Ann Bencivengo on 3/28/2018. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DUWAYNE JACKSON,

Case No.: 17cv882-CAB-BLM
Plaintiff,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 31];
GRANTING MOTION TO DISMISS
WITH RESPECT TO DEFENDANT
PARAMO [Doc. No. 25]; DENYING
MOTION FOR JUDGMENT ON
PROCEEDINGS [Doc. No. 35]; AND
GRANTING MOTION FOR LEAVE
TO AMEND COMPLAINT [Doc. No.
37]

DANIEL PARAMO, et al.,

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Defendant.

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On May 2, 2017, Plaintiff Steven Duwayne Jackson, a state prisoner proceeding pro

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se and in forma pauperis, filed a complaint for violation of his civil rights pursuant to 42

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U.S.C. § 1983, against Defendants Paramo, Romero, Valdovinos, and Navarro alleging

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claims under the Eighth and Fourteenth Amendments. [Doc. No. 1.] On June 14, 2017,

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Plaintiff filed a First Amended Complaint (“FAC”). [Doc. No. 11.] On September 25,

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2017, Defendants filed a motion to dismiss the FAC as to Defendant Warden Paramo.

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[Doc. No. 25.] On December 18, 2017, Magistrate Judge Barbara L. Major issued a Report

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and Recommendation (“Report”) to grant Defendants’ motion to dismiss with leave to

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amend as to the Eighth and Fourteenth Amendment claims against Defendant Paramo.
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[Doc. No. 31.] Objections to the Report were to be filed by February 23, 2018. [Doc. No.

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31 at 16.]

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On February 12, 2018, Plaintiff filed a Motion for Judgment on the Proceedings.

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[Doc. No. 35.] On February 28, 2018, Plaintiff filed a Motion for Leave to Amend

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Complaint. [Doc. No. 37.] Plaintiff did not, however, file any objections to the Report.

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A. Report/Motion to dismiss.

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A district court’s duties concerning a magistrate judge’s report and recommendation

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and a respondent’s objections thereto are set forth in Rule 72(b) of the Federal rules of

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Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court

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is not required to review the magistrate judge’s report and recommendation. The Court

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reviews de novo those portions of the Report and Recommendation to which objections are

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made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part,

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the findings or recommendations made by the magistrate judge.” Id. However, “[t]he

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statute makes it clear that the district judge must review the magistrate judge's findings and

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recommendations de novo if objection is made, but not otherwise.” United States v. Reyna–

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Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original).

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While Plaintiff did not file any objections, following de novo review, the Court finds

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the Report to be thorough, complete, and an accurate analysis of the legal issues presented

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in the motion to dismiss. Therefore, the Court: ADOPTS the Report in full and GRANTS

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the motion to dismiss with leave to amend as to the Eighth and Fourteenth Amendment

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claims with respect to Defendant Paramo.

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B. Motion for Judgment on Proceedings.1

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In the Motion for Judgment on the Proceedings, Plaintiff argues that the motion to

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dismiss should be denied because Defendants did not file a reply to his opposition.

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However, while reply papers are authorized by Local Rule 7.1.e.3, they are not required.

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The Court understands this to be a motion for judgment on the pleadings, as Plaintiff cites to Rule
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Therefore, Plaintiff’s argument is rejected, and the Motion for Judgment on the

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Proceedings is DENIED.

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C. Motion for Leave to Amend Complaint.

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In the Motion for leave to Amend Complaint, Plaintiff seeks leave to file a proposed

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(Second) Amended Complaint (“SAC”). Plaintiff has already been granted leave to amend

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as to the claims against Defendant Paramo. However, the SAC also seeks to add additional

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defendants.

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responded to the FAC, the most efficient course is to allow the filing of the SAC.

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Therefore, the Motion for Leave to Amend Complaint is GRANTED.2

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Defendants Paramo, Romero, Valdovinos and Navarro shall respond to the SAC by
April 27, 2018.

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Given that the current defendants, except defendant Paramo, have not

As to the newly-added Defendants -- L. Coronado, T. Geisinger, D. Clayton, and M.
Deel – the Court:

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DIRECTS the Clerk to issue an amended summons as to Plaintiff’s SAC

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[Doc. No. 37] to include Defendants Coronado, Geisinger, Clayton and Deel, and forward

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it to Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. In

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addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified copy

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of the SAC, and the amended summons so that he may serve them upon these Defendants.

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Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as completely

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and accurately as possible, include an address where each Defendant may be served, see

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S.D. Cal. CivLR 4.1.c, and return them to the United States Marshal according to the

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instructions the Clerk provides in the letter accompanying his IFP package.

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ORDERS the U.S. Marshal to serve a copy of the SAC and amended

summons upon Defendants Coronado, Geisinger, Clayton and Deel, as directed by Plaintiff

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The docket shall reflect that Doc. No. 37 is now the Second Amended Complaint.
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on the USM Form 285s provided to him. All costs of that service will be advanced by the

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United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

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ORDERS Defendants Coronado, Geisinger, Clayton and Deel, once served,

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to respond to Plaintiff’s SAC within the time provided by the applicable provisions of

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Federal Rule of Civil Procedure 12(a).

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ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants Coronado, Geisinger, Clayton and Deel, or, if appearance has been

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entered by counsel, upon Defendants’ counsel, a copy of every further pleading, motion,

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or other document submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b).

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Plaintiff must include with every original document he seeks to file with the Clerk of the

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Court, a certificate stating the manner in which a true and correct copy of that document

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has been was served on Defendants or their counsel, and the date of that service. See S.D.

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Cal. CivLR 5.2. Any document received by the Court which has not been properly filed

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with the Clerk, or which fails to include a Certificate of Service upon the Defendants, may

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be disregarded.

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IT IS SO ORDERED.
Dated: March 28, 2018

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