Yablonsky v. California Department of Correction & Rehabilitation et al

Filing 43

ORDER: (1) Adopting Report and Recommendation [Doc. No. 39 ]; and (2) Granting in Part and Denying in Part Motion to Dismiss [Doc. No. 33 ]. Signed by Judge Cathy Ann Bencivengo on 7/14/2020. (All non-registered users served via U.S. Mail Service)(anh)

Case 3:18-cv-01122-CAB-AGS Document 43 Filed 07/14/20 PageID.4079 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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John Henry YABLONSKY

Case No.: 18cv1122-CAB-AGS
Plaintiff,

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v.

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ORDER: (1) ADOPTING REPORT
AND RECOMMENDATION [Doc.
No. 39]; and (2) GRANTING IN PART
AND DENYING IN PART MOTION
TO DISMISS [Doc. No. 33]

CALIFORNIA DEPARTMENT OF
CORRECTION AND
REHABILITATION,

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Defendants.

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On October 7, 2019, Defendants D. Powell, G. Martinez, J. Robles, D. McGuire,

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R. Blahnik, and C. Tiscarnia (“Defendants”) filed a motion to dismiss Plaintiff’s First

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Amended Complaint. [Doc. No. 39.] On November 5, 2019, Plaintiff John Henry

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Yablonsky (“Plaintiff”) filed an opposition. [Doc. No. 35.] On December 13, 2019,

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Defendants filed a reply. [Doc. No. 36.] On December 31, 2019, Plaintiff filed a sur-

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reply. [Doc. No. 38.] On June 2, 2020, Magistrate Judge Andrew G. Schopler prepared a

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Report and Recommendation (“Report”) recommending that the motion to dismiss be

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granted in part and denied in part. [Doc. No. 39.] The Report also ordered that any

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objections were to be filed by June 16, 2020. [Report at 17.] To date, no objection has

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been filed, nor have there been any requests for an extension of time in which to file an

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objection.

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

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

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Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are

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filed, the district court is not required to review the magistrate judge’s report and

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recommendation. The Court reviews de novo those portions of the Report and

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Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may

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“accept, reject, or modify, in whole or in part, the findings or recommendations made by

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the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge

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must review the magistrate judge's findings and recommendations de novo if objection is

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made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th

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Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute

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

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parties themselves accept as correct.” Id. In the absence of timely objection, the Court

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

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

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Campbel v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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Here, neither party has timely filed objections to the Report. Having reviewed it,

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

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Accordingly, the Court hereby:

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(1) ADOPTS Magistrate Judge Schopler’s Report and Recommendation;

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(2) GRANTS IN PART AND DENIES IN PART the motion to dismiss

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Plaintiff’s First Amended Complaint as follows:
a. Defendant’s motion to dismiss is GRANTED WITH LEAVE TO
AMEND as to the following claims:

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1. Access-to-courts claim;

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2. Retaliation claim (only as to the mail-reading allegation);
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3. ADA disability-discrimination claim; and

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4. Declaratory-relief claim.

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b. Defendant’s motion to dismiss is otherwise DENIED.
(4) Plaintiff shall file any Second Amended Complaint no later than August 7,

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2020. Plaintiff’s Second Amended Complaint must be complete in itself without

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reference to his original pleading. Defendants not named and any claims not re-alleged in

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the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal

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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

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(“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d

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896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not

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re-alleged in an amended pleading may be “considered waived if not repled.”)

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(5) If Plaintiff does not file a Second Amended Complaint by August 7, 2020, then

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Defendants shall file an answer to the First Amended Complaint, as amended by this

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order, by August 21, 2020.

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IT IS SO ORDERED.
Dated: July 14, 2020

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