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Jones v. Morrero

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 18, 2010

ANDRE JONES, PLAINTIFF,
v.
CAPTAIN MORRERO; ET AL., DEFENDANT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING AS MODIFIED THE REPORT AND RECOMMENDATION; DENYING MOTION FOR TRO [doc. #7]; GRANTING MOTION TO DISMISS ACTION [doc. #18]

Plaintiff Andre Jones filed this action under 42 U.S.C. § 1983. The case was referred to United States Magistrate Judge William McCurine, Jr. for a report and recommendation ("Report") pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). The magistrate judge recommended denial of the request for a TRO and dismissal of the case. Neither party filed objections to the Report.

In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report... to which objection is made," and "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). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).

Plaintiff alleges that correctional facility officials were deliberately indifferent to his safety by failing to protect him from an attack by a documented enemy in violation of his Eighth Amendment rights; defendants interfered with his right of access to the courts; and defendants prevented him for having access to his personal property in violation of his due process rights.

The Report recommends dismissal of all of plaintiff's claims but does not indicate whether the dismissal is with or without prejudice. Accordingly, the Report and Recommendations is ADOPTED but with modifications.

IT IS ORDERED defendants' motion to dismiss is GRANTED as follows:

1. Plaintiff's claim for violation of his right of access to the courts is dismissed without prejudice*fn1;

2. Plaintiff's claim for failure to protect is dismissed without prejudice as to defendants Goff, Homer and Cortez;

3. Plaintiff's due process claim is dismissed with prejudice.

4. Dismissal of plaintiff's claims against defendants in their official capacity is granted with prejudice and denied without prejudice as to claims brought in defendants' individual capacity;

5. Dismissal of defendant Morrero is without prejudice.

IT IS FURTHER ORDERED plaintiff's motion for temporary restraining order is DENIED;

IT IS FURTHER ORDERED that plaintiff may file an amended complaint in conformity with this Order on or before March 29, 2010.

IT IS SO ORDERED.


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