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Daniels v. Ruan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 12, 2006

BOBBY JOE DANIELS, PLAINTIFF,
v.
KUZIL RUAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING THE REPORT AND RECOMMENDATION; GRANTING DEFENDANTS' MOTION TO DISMISS; AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT AS TO CERTAIN CLAIMS

On April 29, 2005, Bobby Joe Daniels ("plaintiff"), a state prisoner proceeding pro se, filed this action alleging violation of his constitutional rights under 42 U.S.C. § 1983. After the Court granted defendants' motion for judgment on the pleadings [doc. #69], plaintiff filed an Amended Complaint on September 13, 2006 [doc. #87] that is the subject of the current motion to dismiss [doc. #92]. United States Magistrate Judge Nita L. Stormes issued a Report and Recommendation ("Report") on November 6, 2006, which recommended granting defendants' motion to dismiss and granting leave to amend as to plaintiff's first amendment retaliation claim and his eighth amendment failure to protect claim only.

The parties were advised that objections to the Report and Recommendation were due by December 4, 2006. To date, neither party has submitted objections to the Report.

The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003). Having carefully reviewed the Report, the motion papers, and the file in this case, the Court finds that the magistrate judge has submitted a thorough and well-reasoned analysis of plaintiff's claims and the law as it is applied to a motion to dismiss. Because there have been no objections raised, and the Court finds the recommendations of the magistrate judge well taken, IT IS ORDERED adopting the November 6, 2006 Report and Recommendation in its entirety [doc. #106]. IT IS FURTHER ORDERED granting defendants' motion to dismiss [doc. #92]. IT IS FURTHER ORDERED granting plaintiff leave to filed a Second Amended Complaint with respect to his first amendment retaliation claim and his eighth amendment failure to protect claim only. All other claims that plaintiff has alleged in his First Amended Complaint are dismissed with prejudice. IT IS FURTHER ORDERED that plaintiff shall have thirty days from the date this Order is filed in which to file a Second Amended Complaint in conformity with the Report and Recommendation and this Order. IT IS FURTHER ORDERED directing plaintiff to comply with Federal Rule of Civil Procedure 8 if he intends to file a Second Amended Complaint.

IT IS SO ORDERED.

20061212

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