The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the review of the Report and Recommendation (#75) filed on December 26, 2006 by the United States Magistrate Judge Cathy Ann Bencivengo.
On January 24, 2006, Plaintiff Karluk Khan Mayweathers, a state prisoner proceeding pro se, filed a Third Amended Complaint against prison officials alleging civil rights violations pursuant to 42 U.S.C. § 1983.
On May 1, 2006, Defendants moved the Court to dismiss Plaintiff's Third Amended Complaint.
On December 26, 2006, Magistrate Judge Cathy Bencivengo issued a Report and Recommendation recommending that Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint be granted in part and denied in part. The Report and Recommendation concluded as follows: 1) any claim alleged in the Third Amended Complaint based upon actions from 1986, 1990 and 2001 are barred by the statute of limitations; 2) any claim against the California Department of Corrections is barred by the Eleventh Amendment; 3) any claim against Defendants Hickman, Woodford and Giurbino should be dismissed because the Third Amended Complaint contains no allegations of personal participation by these Defendants; 4) any claim for damages for an equal protection violation should be dismissed because Defendants are shielded by qualified immunity; and 5) any claim for violation of the Religious Land Use and Institutionalized Persons Act of 2000 and any claim for an equal protection violation based on religious discrimination should be dismissed for failure to state a claim. The Report and Recommendation further concludes that the Third Amended Complaint adequately states an equal protection claim for injunctive relief preventing the Defendants from assigning Plaintiff cell partners based upon race.
The parties were ordered to file any objections to the Report and Recommendation on or before August 26, 2005.
On January 24, 2007, Plaintiff filed objections to the Report and Recommendation.
Plaintiff asserts that he is still being subjected to a policy of race based cell assignments.
The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must 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." 28 U.S.C. § 636(b)(1). The failure to file objections relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo. Brilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989).
The Court has reviewed de novo all aspects of the Report and Recommendation of the Magistrate Judge filed on December 26, 2006. The Court adopts all portions of the Report and Recommendation except for the "Section E. Qualified Immunity" on page 7 line 12 through page 9 line 15. Therefore, the Court will dismiss 1) any claim alleged in the Third Amended Complaint based upon actions from 1986, 1990 and 2001; 2) any claim against the California Department of Corrections; 3) any claim against Defendants Hickman, Woodford and Giurbino; and 5) any claim for violation of the Religious Land Use and Institutionalized Persons Act of 2000 and any claim for an equal protection violation based on religious discrimination.
The remaining claim in the Third Amended Complaint alleges a violation of Plaintiff's 14th amendment right to be free from racial discrimination on February 18, 2005 resulting from a prison wide segregated cell policy against Defendants Bennett, Hunt, Trujillo, Ryan, and Ochoa. On December 20, 2005, this Court issued an order dismissing the Second Amended Complaint which stated in part: "Plaintiff has alleged a housing policy based on racial classification, but once again fails to identify a Defendant or Defendants who are responsible for enforcing the alleged policy. Although Plaintiff alleges several Defendants 'participated directly' in the enforcement of the policy, there are no factual allegations regarding what actions these Defendants took which violated Plaintiff's equal protection rights. Plaintiff contends that he was disciplined only once as a result of refusing to be celled with a particular inmate, that that was the only time he had refused a cell assignment, and that although he has requested to be celled with an inmate of another race on other occasions, he has always been assigned a cell mate of the same race. Plaintiff is granted leave to amend the Complaint as to this claim, but must identify as a Defendant a person or persons who are or were responsible for enforcing the policy against him and allege when the Defendant(s) actions were taken." Doc. # 36 at 19.
The Third Amended Complaint alleges that "Defendants R. Bennett, acting along with Defendant Hunt, Trujillo and under the supervision of Defendants Ryan and Ochoa did violate Plaintiff's 14 amendment right to be free from racial discrimination" on February 18, 2005 by maintaining a prison wide segregated cell policy which serves no penological purpose; and that Plaintiff requested and was refused the right to be free from this racial discrimination. (Doc. # 41 at 3.) The Magistrate Judge concluded and this Court agrees that this equal protection claim is sufficiently alleged. (Report and Recommendation at 6-7.) However, this Court concludes that the Third Amended ...