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Gann v. Neotti

June 15, 2010

JOHN DAVID GANN ALSO KNOWN AS JENNIFER GANN, PLAINTIFF,
v.
GEORGE A. NEOTTI ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER:

(1) OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; [Doc. No. 47]

(2) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; [Doc. No. 34]

(3) DENYING PLAINTIFF'S MOTION TO SUPPLEMENT THE COMPLAINT; [Doc. No. 21]

(4) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT; [Doc. No. 49]

(5) FINDING AS MOOT DEFENDANTS' PENDING MOTIONS TO DISMISS [Doc. Nos. 19, 35]

On August 5, 2009, Plaintiff John David Gann, aka Jennifer Gann, a state prisoner proceeding pro se and in forma pauperis, filed the instant action for alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) On October 22, 2009, Plaintiff filed a second amended complaint ("SAC"), which is the operative pleading in this action. (Doc. No. 10.) Plaintiff is biologically male, but identifies as a transgender female, and is on a regimen of hormone therapy. (SAC at ¶ 16.)*fn1 In the SAC, Plaintiff alleges that Defendants violated her civil rights by discriminating and harassing her based on her transgender status; inflicting cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, including deprivation of outdoor exercise and indifference to medical need; and denying her equal protection under the law by failing to treat her equally to biological women. On November 25, 2009, Defendants filed a motion to dismiss the SAC. (Doc. No. 19.) Rather than opposing the motion, Plaintiff filed a motion to supplement her complaint. (Doc. No. 21.) Defendants opposed the motion. (Doc. No. 26.) Now before the Court is the assigned Magistrate Judge's report and recommendation ("R&R"), recommending that the Court deny Plaintiff's motion to supplement. (Doc. No. 34.) On May 21, 2010, Plaintiff filed objections to the R&R. (Doc. No. 47.) Defendants timely replied. (Doc. No. 48.) For the reasons set forth herein, the Court ADOPTS the R&R in its entirety and DENIES Plaintiff's motion to supplement.

Legal Standard

I. Federal Rule of Civil Procedure 72(b) - Report and Recommendation

A district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return 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). An objecting party may "serve and file specific written objections to the proposed findings and recommendations," and "a party may respond to another party's objections." Fed. R. Civ. P. 72(b).

In reviewing an R&R, "the 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. Raddatz, 447 U.S. 667, 676 (1980) (when objections are made, the court must make a de novo determination of the factual findings to which there are objections). "If neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law." Orand v. United States, 602 F.2d 207, 208 (9th Cir.1979). Objections must, however, be specific, not vague or generalized. See Fed. R. Civ. P. 72(b)(2) (requiring "specific" objections).

II. Motion to Supplement

Rule 15(a) of the Federal Rules of Civil Procedure provides that after a responsive pleading has been served, a party may amend its complaint only with leave of court, and leave "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Granting leave to amend rests in the sound discretion of the district court. Pisciotta v. Teledyne Industries, Inc., 91 F.3d 1326, 1331 (9th Cir. 1996). Although the rule should be interpreted with extreme liberality, leave to amend is not to be granted automatically. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). Five factors are taken into account to assess the propriety of a motion for leave to amend: (1) bad faith or dilatory motive on the part of the movant, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Although a court ...


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