The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING SECOND REPORT AND RECOMMENDATION [Dkt. no. 59]
Plaintiff K. Jamel Walker, previously an inmate at Calipatria State Prison ("Calipatria"), is proceeding pro se. Plaintiff is currently incarcerated at Mule Creek State Prison, where the lighting problems he complains of at Calipatria concededly do not exist. (First Amended Complaint ("FAC") at 9:7--9.)
On September 12, 2006, the Court adopted Magistrate Judge Stormes' report and recommendation, dismissing Plaintiffs' claims but granting Plaintiff Walker leave to file an amended complaint. On October 19, 2006, Plaintiff Walker filed the FAC, adding Defendants and claims. Defendants Woodford and Ryan filed a motion to dismiss the FAC, in which the other Defendants joined. On May 3, 2007, Magistrate Judge Stormes issued her second report and recommendation (the "R&R"), recommending as follows:
1. The motion to dismiss Plaintiff's Eighth Amendment claim be denied as to Defendants Ryan, Bourland, Scribner, Ochoa, and Grannis, but granted as to all other Defendants with leave to amend;
2. The motion to dismiss Plaintiff's equal protection claim be granted as to all Defendants with leave to amend;
3. The motion to dismiss Plaintiff's requests for relief under California Constitution Article I, sections 7 and 24 be granted as to all Defendants without leave to amend;
4. The motion to dismiss Plaintiff's requests for relief under California Constitution Article I, section 17 be granted as to all Defendants with leave to amend, and if he amends, Plaintiff must show he complied with the California Tort Claims Act;
5. Defendant's motion to dismiss Plaintiff's supplemental state tort claims for negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress be granted as to all Defendants with leave to amend, and if he amends, Plaintiff must show he complied with the California Tort Claims Act for all these claims;
6. Plaintiff's request for injunctive relief be stricken; and
7. Plaintiff's request for declaratory relief be denied.
Plaintiff filed objections to the R&R; Defendants did not object.
A district court has jurisdiction to review the report and recommendation on dispositive pretrial motions. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id.; see also 28 U.S.C. § 636(b)(1)(C). "A judge of the court may 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)(C). Thus, this Court reviews those parts of the report and recommendation to which a party has filed specific written objections.
Allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where a plaintiff appears in pro per in a civil rights case, the court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi, 839 F.2d at 623. Although the Court must construe the pleadings liberally, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
The Court, although construing Plaintiffs' complaint liberally, will not assume that Defendants have violated their rights in ways that have not been alleged. See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
The standard used to evaluate a motion to dismiss is a liberal one, particularly when the action has been filed pro se. However, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.
Vague and conclusory allegations of official participation in civil rights violations are not sufficient to ...