The opinion of the court was delivered by: William Q. Hayes United States District 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 in part, and deny in part, Defendants' motion to dismiss. (Doc. # 56).
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 (ADA) against numerous correctional officers and employees. (Doc. # 1). The Complaint alleges ten enumerated claims and four unenumerated claims for excessive force, denial of medical care, and violations of Plaintiff's rights to equal protection and access to the courts, among other things. Counts 1-3 relate to a physical altercation between Plaintiff and Defendants which occurred on May 17, 2004, Counts 4 and 5 relate to an alleged ongoing violation of Plaintiff's right to access to the courts, and Counts 6-10 relate to incidents which occurred on August 6, 2004, and October 12, 2004. An unenumerated eleventh claim alleges that Defendants violated Plaintiff's rights under the ADA, and three other unenumerated claims allege that Defendants retaliated and committed other wrongs against Plaintiff. (Doc. # 1).
On May 11, 2007, Defendants filed a motion to dismiss the Complaint and a request for judicial notice in support of the motion to dismiss. (Doc. # 43). On July 16, 2007, Plaintiff filed an opposition to the motion to dismiss. (Doc. # 50). On July 23, 2007, Defendants filed a reply. (Doc. # 54).
On December 4, 2007, Magistrate Judge Barbara L. Major issued a Report and Recommendation recommending that this Court deny Defendants' motion to dismiss Plaintiff's ADA claim against Defendant Moreno, and grant Defendants' motion to dismiss the remaining claims and Defendants. (Doc. # 56). The Report and Recommendation concluded that Plaintiff failed to exhaust his administrative remedies for Counts 1-3, 6-10, and the unenumerated claims relating to the events of November 12, 2004, because Plaintiff failed to file his complaint with prison officials within 15 days of the incidents as required by 15 C.C.R. § 3084.6(c). Report and Recommendation R & R) at 6-21. The Report and Recommendation concluded that Plaintiff's Counts 4 and 5 should be dismissed because Plaintiff failed to allege an actual injury and a specific instance when he was denied access to the courts. R & R at 26-27, 30. The Report and Recommendation concluded that Plaintiff's section 1983 claims against Defendants Cota and Stovall should be dismissed because Plaintiff does not have a constitutional right to a prison grievance system and the complaints filed against Cota and Stovall were untimely. R & R at 31-32.
The Report and Recommendation concluded that Plaintiff failed to serve Defendants Staneff, Avila, Hill, Merto, Ortiz, Graham and Camacho, and thus, the Magistrate Judge recommends that the Court dismiss the claims against those Defendants.
With respect to Plaintiff's claim pursuant to the ADA, the Report and Recommendation concluded that Defendant Moreno is not entitled to qualified immunity. R & R at 38-40. Accordingly, the Report and Recommendation recommends denying the motion to dismiss Plaintiff's ADA claim.
On January 28, 2008, Plaintiff filed Objections to the Report and Recommendation. (Doc # 59). Plaintiff objects to the Report and Recommendation's conclusion that Plaintiff failed to exhaust his administrative remedies with respect to Counts 1-3 and 6-10. Specifically, Plaintiff claims that he filed timely appeals on April 11 and 25, 2005, and that therefore he exhausted his administrative remedies. Objections at 13. Plaintiff further states that he filed for and was granted a postponement of his disciplinary hearing on May 24, 2004, which extended his time to file an administrative grievance. Objections at 14, Ex. A.
On February 15, 2008, Defendants filed a reply to Plaintiff's objections. (Doc. # 60). Defendants state that the Plaintiff's April, 2005 appeals did not exhaust Counts 1-3 and 6-10 because Plaintiff never postponed or sought postponement of the time to file an administrative grievance. Reply to Plaintiff's Objections at 2.
The duties of a 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, 149-150 (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. ReynaTapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). A District Court may always, "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, 435 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006); Or. Natural Desert Ass'n v. Rasmussen, 451 F. ...