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Gary v. Hawthron

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 19, 2007

REGINALD GARY, PLAINTIFF,
v.
K. HAWTHRON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge

ORDER (1) ADOPTING REPORT AND RECOMMENDATION AND (2) GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

Pending before the Court is the Report and Recommendation of Magistrate Judge Peter C. Lewis (Doc. # 40), filed on July 25, 2007, recommending that the Court grant Defendants' motion to dismiss Plaintiff's Complaint.

BACKGROUND

On July 25, 2006, Plaintiff Reginald Gary, a pro se state prisoner currently incarcerated at Tehachapi State Prison, filed the complaint in this matter. (Doc. # 1). Plaintiff seeks relief under 42 U.S.C. §1983 and alleges that Defendants have denied Plaintiff pain medication and access to prison programs and a job because of Plaintiff's disability. (Doc. # 1 at 1-6). Plaintiff alleges violations of his rights under the Eighth Amendment, Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et. seq., and the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 701 et seq., and seeks monetary damages as well as declaratory and injunctive relief. (Doc. # 1 at 7-10).

On February 16, 2007, Defendants Hawthron, Dumas, Pasha, Hernandez, and Marsh filed a motion to dismiss Plaintiff's Complaint on two grounds. (Doc. # 30). Defendants contend that Plaintiff's injunctive and declaratory relief claims should be dismissed pursuant to FED. R. CIV. P. 12(b)(1) for "lack of jurisdiction over the subject matter" because these claims have previously been resolved before another federal court in Plata v. Schwarzenegger, No. 01-1351 (N.D. Cal. Feb. 14, 2006). (Doc. # 30 at 7-8). Defendants further contend that (1) Plaintiff's RA and ADA claims against Defendant Marsh should be dismissed because Marsh was improperly sued in an individual capacity, and (2) Plaintiff's monetary claims against Defendants Hernandez, Tilton, and Schwarzenegger should be dismissed because those Defendants are entitled to Eleventh Amendment sovereign immunity for those claims. (Doc. # 30 at 4-7).

On July 25, 2007, Magistrate Judge Peter C. Lewis issued a Report and Recommendation (Doc. # 40) recommending that the Court grant Defendants' motion to dismiss Plaintiff's Complaint.

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. § 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).

CONCLUSION & ORDER

Neither party objected to the Magistrate Judge's Report and Recommendation in this case. Accordingly, and after reviewing the Report and Recommendation in its entirety, the Court finds that the Magistrate Judge correctly concluded that (1) Plaintiff's claims for declaratory and injunctive relief regarding medical services should be discretionarily dismissed; (2) Plaintiff's ADA and RA claims against Defendant Marsh should be dismissed because a plaintiff cannot bring a claim pursuant to § 1983 to vindicate rights under the ADA or RA; and (3) Plaintiff's claims against Defendants Hernandez, Tilton, and Schwarzenegger should be dismissed because those Defendants are entitled to sovereign immunity.

IT IS HEREBY ORDERED that:

(1) the Magistrate Judge's Report and Recommendation (Doc. # 40) is adopted in its entirety; and

(2) Defendants' motion to dismiss (Doc. # 30) Plaintiff's Complaint is GRANTED.

IT IS SO ORDERED.

WILLIAM Q. HAYES United States District Judge

20070919

© 1992-2007 VersusLaw Inc.



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