Goodlow, Jr. v. Camacho et al

Filing 45

ORDER Adopting Report and Recommendation [Doc. No. 40 ] and Granting Defendants' Partial Motion to Dismiss [Doc. No. 37 ]. Signed by Judge Cathy Ann Bencivengo on 5/23/2019. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IVAN FRANCES GOODLOW, JR.,

Case No.: 18cv709-CAB-MDD

Plaintiff,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 40]
and GRANTING DEFENDANTS’
PARTIAL MOTION TO DISMISS
[Doc. No. 37]

Mr. CAMACHO, C-Yard Correctional
Officer, et al.,

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Defendant.
On April 9, 2018, Plaintiff Ivan Goodlow, Jr. (“Plaintiff”), a state prisoner
proceeding pro se and informa pauperis, filed a civil rights complaint pursuant to 42
U.S.C. §1983. [Doc. Nos. 1, 22.] Plaintiff alleges that eleven individuals working at
R.J. Donovan Correctional Facility (“RJD”) violated his civil rights by: (1) retaliating
against him in violation of the First Amendment; (2) imposing excessive force and
depriving him of one meal in violation of the Eighth Amendment; and (3) filing a false
disciplinary report in violation of the Eighth, Ninth, and Fourteenth Amendments. [Doc.
No. 1 at 5-13.] On February 14, 2019, Defendants Keener, Camacho, Smith, Self, Salas,
Marin, and Sigala (the only defendants who have been served) filed a motion to dismiss
certain defendants and parts of Plaintiff’s complaint. [Doc. No. 37.] Plaintiff filed an
opposition to Defendants’ motion to dismiss on March 11, 2019. [Doc. No. 39.]
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On June 30, 2017, Magistrate Judge Mitchell D. Dembin issued a Report and

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Recommendation to grant Defendants’ partial Motion to Dismiss (the “Report”). [Doc.

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No. 40.] In the Report, Magistrate Judge Dembin also recommended that this Court issue

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an Order to Show Cause (“OSC”) as to why the unserved defendants should not be

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dismissed. [Doc. No. 40 at 2, n. 1., 14.] On May 10, 2019, Plaintiff filed what this Court

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deemed to be objections to the Report, but the objections only pertain to the

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recommendation regarding issuing an OSC as to the unserved defendants. [Doc. No. 42.]

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REVIEW OF REPORT AND RECOMMENDATION

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The duties of the district court in connection with a report and recommendation of

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a magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §

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636(b). The district court need not review de novo those portions of a report and

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recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992,

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1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003)

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(en banc).

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DISCUSSION
Having reviewed the portion of the Report regarding the partial motion to dismiss,

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to which no objection was made, the Court finds that it is thorough, well-reasoned, and

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contains no clear error. Accordingly, the Court hereby (1) ADOPTS Magistrate Judge

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Dembin’s Report as to the partial motion to dismiss; and (2) GRANTS the partial motion

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to dismiss, as set forth in detail below.

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In the Report, Magistrate Judge Dembin also recommends that this Court issue an

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OSC as to why the unserved defendants should not be dismissed. Plaintiff objects to this

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portion of the Report, and requests the Court’s assistance in locating the unserved

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defendants. [Doc. No. 42.] A review of the docket shows that the U.S. Marshal mailed

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the summons and complaint to the Litigation Coordinator at RJD, and the summons were
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returned unexecuted because the individuals were not employed at the institution. [See

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Doc. Nos. 24-26, 28.] The only assistance the Court can provide is to allow Plaintiff

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additional time to conduct discovery in the normal course as to the unserved defendants.

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Therefore, the Court will not issue an OSC as to the unserved defendants at this time.

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However, Plaintiff must serve the remaining (unserved) defendants with the operative

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complaint by June 28, 2019.

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CONCLUSION

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For the reasons set forth above, (1) Magistrate Judge Dembin’s Report is

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ADOPTED as to the partial motion to dismiss and (2) Defendants’ partial motion to

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dismiss is GRANTED, as follows:
1. Defendants’ motion to dismiss as to Plaintiff’s official capacity claims against

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all Defendants is GRANTED WITHOUT LEAVE TO AMEND;
2. Defendants’ motion to dismiss as to all claims against Defendants Smith and

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Self is GRANTED WITHOUT LEAVE TO AMEND;
3. Defendants’ motion to dismiss the Eighth Amendment claim as to Defendant

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Keener is GRANTED WITHOUT LEAVE TO AMEND;

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4. Defendants’ motion to dismiss the Fourteenth Amendment claim as to

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Defendant Keener is GRANTED WITH LEAVE TO AMEND.1

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5. Should Plaintiff wish to amend his Fourteenth Amendment claim as to

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Defendant Keener, he may do so by filing a First Amended Complaint (FAC)

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no later than June 21, 2019. Plaintiff is cautioned that the FAC must be

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complete in itself without reference to his original pleading. Defendants not

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named and any claims not re-alleged in the FAC will be considered waived. See

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S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,

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At this point, the following claims remain pending: 1) Plaintiff’s Eighth Amendment claim against
Defendants Camacho, Sigala, Salas, and Marin, in their individual capacities; (2) Plaintiff’s First
Amendment Retaliation claim against Defendants Camacho, Sigala, Salas, and Marin, in their individual
capacities.
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896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

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original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting

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that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”) However,

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Plaintiff may not reallege the claims that have been dismissed without leave to

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amend in this Order.

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6. If Plaintiff does not file an FAC by June 21, 2019, then Defendants Camacho,

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Sigala, Salas, and Marin shall answer the complaint, as amended by this Order,

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by July 8, 2019.

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7. Plaintiff shall serve the remaining (unserved) defendants with the operative

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complaint (either the original complaint or the FAC) by June 28, 2019.

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IT IS SO ORDERED.
Dated: May 23, 2019

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