UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 10, 2007
LARRY CHARLES CLEVELAND, PLAINTIFF,
T. DENNISON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hayes, Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the Report and Recommendation of Magistrate Judge Barbara L. Major recommending that the Court grant Defendant Schwarzenegger's motion to dismiss. (Doc. # 45).
On August 8, 2006, Plaintiff Larry Charles Cleveland, a state prisoner proceeding pro se, filed the Complaint in this matter and asserted violations of 42 U.S.C. § 1983 and the Americans with Disabilities Act against numerous correctional officers and employees. (Doc. # 1). The Complaint also named California Governor Arnold Schwarzenegger as a Defendant. (Doc. # 1). On April 12, 2007, Defendant Schwarzenegger moved to dismiss the Complaint on the grounds that (1) Defendant Schwarzenegger is entitled to qualified immunity, and (2) Plaintiff sued Defendant Schwarzenegger under an impermissible theory of respondeat superior. (Doc. # 24). On May 4, 2007, Plaintiff filed an opposition to Defendant Schwarzenegger's motion to dismiss. (Doc. # 42).
On May 31, 2007, Magistrate Judge Barbara L. Major issued a Report and Recommendation recommending that the Court grant Defendant Schwarzenegger's motion to dismiss and deny as moot Defendant Schwarzenegger's motion to dismiss on grounds of qualified immunity. (Doc. # 45). Neither party filed an objection to the Report and Recommendation.
STANDARD OF REVIEW
The duties of the district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Where the parties object to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C.A. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objections are filed, the district court need not review de novo the Report and Recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). A district court may nevertheless, "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006); Or. Natural Desert Ass'n v. Rasmussen, 451 F. Supp. 2d. 1202, 1205 (D. Or. 2006).
DISCUSSION & ORDER
Neither party objected to the Magistrate Judge's Report and Recommendation in this case, and the Court has reviewed the Report and Recommendation in its entirety. The Court concludes that the Magistrate Judge correctly determined that Plaintiff did not allege facts by which one could plausibly infer that Defendant Schwarzenegger had knowledge of the alleged use of excessive force at the Richard Donovan Correctional Facility or failed to perform some duty or responsibility that he was legally required to do. Report and Recommendation at 6-8; see also Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965-68 (2007) (noting the "requirement of plausibility"). The Court agrees with the Magistrate Judge that Plaintiff's bare allegation that Defendant Schwarzenegger "had actual knowledge" of the use of excessive force is not plausible in light of the allegations, and as alleged, is an impermissible attempt to hold Defendant Schwarzenegger liable by way of respondeat superior.
IT IS HEREBY ORDERED that the Report and Recommendation (Doc. # 45) is adopted in its entirety. Defendant Schwarzenegger's motion to dismiss (Doc. # 24) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff is granted 30 days from the date that this order is stamped filed to amend the Complaint with respect to the allegations against Defendant Schwarzenegger. If Plaintiff does not file an Amended Complaint, Defendant Schwarzenegger's dismissal will be with prejudice.
IT IS SO ORDERED.
WILLIAM Q. HAYES United States District Judge
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