UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 5, 2010
DANIEL J. LANG, PLAINTIFF,
CANLAS, DOCTOR; ESCALANTE, CORRECTIONAL OFFICER (C/O); ALLAMBY, LIEUTENANT; WHITEHEAD, R.N.; M. RUIZ, DOCTOR; SINAGA, REGISTERED NURSE, DEFENDANTS.
The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION AND (2) GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. Nos. 49 & 55)
Presently before the Court is Magistrate Judge Cathy Ann Bencivengo's Report and Recommendation ("R&R") advising this Court to grant Defendants' motion to dismiss. (Doc. No. 55.) Plaintiff did not timely file objections.
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of a 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 findings 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)).
Since Plaintiff failed to timely object to Magistrate Judge Bencivengo's R&R, the Court need only ensure that it is not clearly erroneous given the record. Having done so, the Court finds Judge Bencivengo's opinion is thorough, well reasoned, and no contains no clear error. Therefore, the Court ADOPTS the R&R in full. The Court therefore GRANTS Defendants' motion to dismiss as follows:
1) the Eighth Amendment deliverate indifference claims in Cout One (and Count Two in the Form Complaint) against Defendants Canlas, Whitehead, and Escalante are DISMISSED WITH PREJUDICE;
2) the negligence claim (and all other state law claims) in Cout One (and Count Towo in the Form Complaint) against Defendants Canlas, Whitehead, and Escalante are DISMISSED WITHOUT PREJUDICE;
3) the claim for excessive force/First Amendment (and related federal and state law claims) in Count Three against defendants Escalante and Allamby are DISMISSED WITHOUT PREJUDICE;
4) the claim for retaliation (and related federal and state law claims) in Count Four against defendants Sinaga and Ruiz are DISMISSED WITHOUT PREJUDICE.
Since all claims in the Second Amended Complaint have now been dismissed, the Clerk shall close the file.
IT IS SO ORDERED.
© 1992-2010 VersusLaw Inc.