The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER AMENDING ORDER ISSUED FEBRUARY 21, 2008 [Docket nos. 17, 19, 20, 24, 65]
Plaintiff, a prisoner proceeding pro se, brought claims under 42 U.S.C. §§ 1983 and 1985 for alleged violations of his rights to equal protection, due process, and freedom from cruel and unusual punishment. This matter was referred to Magistrate Judge Nita L. Stormes for report and recommendation pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.1(d). Defendants filed a non-enumerated motion under Fed. R. Civ. P. 12(b) seeking an order dismissing the complaint, granting judicial notice of certain facts, and charging Plaintiff with a strike under 28 U.S.C. § 1915(g). Defendants asserted various grounds for dismissal, including failure to exhaust, failure to state a claim, and qualified immunity. Following briefing, Judge Stormes issued her report and recommendation (the "R&R").
The R&R notified Plaintiff of his right to object, and cautioned him that failure to object within the time permitted might waive his appellate rights. A district judge "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see also 28 U.S.C. §636(b)(1). A party objecting to the recommended disposition of the matter may "serve and file specific objections to the proposed findings and recommendations," and "a party may respond to another party's objections." Rule 72(b). "[T]he court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. §636(b)(1). United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.")
Plaintiff filed his objections ("Objections") on February 22, 2008 and the same day filed an ex parte application (the "Application") for leave to amend his complaint. Defendants filed no objections of their own, but did reply to Plaintiff's objections, arguing he should not be given leave to amend his complaint.
The R&R recommended denial of Defendants' motion in most respects, except that it recommended dismissal of Plaintiff's due process and equal protection claims with leave to amend. Plaintiff's Objections are generalized, setting forth his understanding of the facts and the requesting leave to amend the complaint to better explain his position. In his Application, Plaintiff concedes he has not adequately pleaded his due process and equal protection claims. In essence, Plaintiff's objection explains what he intends to include in his amended complaint.
Plaintiff's Objections are therefore OVERRULED AS MOOT. Page 5, line 11 of the R&R is modified to say that "defendants 'have the burden of raising and proving the absence of exhaustion.'" The Court ADOPTS the R&R as modified.
As set forth in the R&R, Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART:
1. Plaintiff's due process and equal protection claims are DISMISSED WITHOUT PREJUDICE.
2. Defendants' motion to dismiss for failure to exhaust and because of their qualified immunity is DENIED WITHOUT PREJUDICE.
3. In all other respects, their motion is DENIED.
Plaintiff's request for judicial notice of 15 C.C.R. § 1 is GRANTED.
Although both parties have represented to the Court that Plaintiff needs leave to amend his complaint, a review of the docket shows Defendants never answered or filed a motion for summary judgment. The Court therefore notes Plaintiff was not required to seek leave to amend his complaint, because under Fed. R. Civ. P. 15(a)(1), he may do so once as a matter of right. See Rhoades v. Avon Products, Inc., 504 F.3d 1151, 1158 (9th Cir. 2007) (citing Miles v. Dep't of Army, 881 F.2d 777, 781 (9th Cir. 1989)) (holding a motion to dismiss is not a responsive pleading within the meaning of Rule 15(a)).
For this reason, the Court RECONSIDERS and its order issued February 15, 2008 denying leave to amend, and AMENDS that order to DENY AS MOOT Plaintiff's motion for leave to supplement his complaint.
Plaintiff's Application is GRANTED to the extent he seeks leave to amend his complaint to add or clarify factual allegations in support of his claims. Plaintiff's request for judicial notice included in his Application is DENIED AS MOOT, because the Court ...