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Bovarie v. Tilton

March 1, 2010

MARCUS BOVARIE, PLAINTIFF,
v.
JAMES E. TILTON, ET AL., DEFENDANT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER (1) SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFF'S OBJECTION TO DEFENDANTS R&R; (2) OVERRULING PLAINTIFF'S OBJECTION TO SMELOSKY R&R; (3) ADOPTING IN PART AND REJECTING IN PART DEFENDANTS R&R; (4) ADOPTING SMELOSKY R&R; and (5) GRANTING IN PART AND DENYING IN PART DEFENDANTS' AND MOTIONS TO DISMISS. DEFENDANT SMELOSKY'S (Doc. Nos. 100, 112, 113, 114.)

On May 18, 2009, Marcus Bovarie ("Plaintiff"), a California prisoner proceeding pro se, filed a Fourth Amended Complaint ("4AC") against various Defendants under 42 U.S.C. § 1983. (Doc. No. 98.) Defendants Cates, Tilton, Woodford, Hickman and Dovey (Directors); Almager, Salazar and Giurbino (Wardens); Denault, Darr and Grannis (Lieutenants); Hernandez, Cortez, Napolitano and Kuzil-Ruan (Captains); Cullors, Pitones and Anchondo (Library Staff); Gonzales (Associate Warden) and Steinhaus (Supervisor of Vocational Instruction) filed a motion to dismiss certain claims in the 4AC on June 9, 2009 (collectively, "Defendants"). (Doc. No. 100.)

On October 22, 2009, Magistrate Judge Nita L. Stormes issued a Report and Recommendation (R&R) recommending the Court to grant in part and deny in part Defendants' motion to dismiss. ("Defendants R&R") (Doc. No. 112.) Shortly thereafter, Defendant Smelosky, a former warden, filed a separate motion to dismiss. (Doc. No. 113.) Magistrate Judge Stormes issued a second R&R recommending this Court grant in part and deny in part Smelosky's motion to dismiss ("Smelosky R&R"). (Doc. No. 114.)

Plaintiff timely filed his objections to both R&Rs on November 16, 2009 and December 16, 2009. (Doc. Nos. 115, 120.) Having fully considered the R&Rs and Plaintiff's objections, the Court HEREBY SUSTAINS IN PART AND OVERRULES IN PART Plaintiff's objections to Defendants R&R; OVERRULES Plaintiff's objection to the Smelosky R&R; ADOPTS IN PART AND REJECTS IN PART Defendants' R&R; ADOPTS the Smelosky R&R; and GRANTS IN PART AND DENIES IN PART Defendants' and Defendant Smelosky's motion to dismiss. Both motions will be addressed separately below.

FACTUAL AND PROCEDURAL BACKGROUND

Magistrate Judge Stormes' R&R for Defendants' motion extensively lays out the procedural and factual background in this matter, which was initiated in March of 2006 and has undergone four amendments to the complaint after receiving multiple R&Rs and Orders from the district judge. Plaintiff makes no specific objection to these summaries, which were also incorporated by reference in the Smelosky R&R. Thus, the Court adopts by reference Magistrate Judge Stormes' recitation of the facts as set forth in Defendants' R&R. (See Doc. No. 112 at 2-8.)

LEGAL STANDARD

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of the district court in connection with a magistrate judge's report and recommendation. "The district court must 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 finding or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

DISCUSSION

I. DEFENDANTS' MOTION TO DISMISS

Magistrate Judge Stormes recommends the Court grant in part and deny in part Defendants' motion to dismiss. Defendants have not timely filed objections.Plaintiff has filed objections, but only to two of the magistrate judge's recommendations.

A. Non-Objected To Recommendations

The Court has reviewed the recommendations of the magistrate judge as to the non-objected to portions of the R&R and finds that they are thorough, well reasoned, and contain no clear error. Accordingly the Court ADOPTS the non-objected to portions of the R&R and therefore the Court HEREBY:

(1) GRANTS Defendants' motion to dismiss the claims for money damages to the extent Defendants are sued in their official capacities.

(2) DENIES AS MOOT the dismissal of Defendant Steinhaus because Plaintiff did not name him ...


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