UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 15, 2010
DAVID EARL PARMER, PLAINTIFF,
ALVAREZ, BADGE #75127; CUEVAS-PEDRO, DEFENDANTS.
The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [Docket Nos. 33, 35]
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brought this action for violations of his civil rights under 42 U.S.C. § 1983. The suit arises out of allegations that the correctional officers violated his Eighth Amendment right to be free from cruel and unusual punishment when they used excessive force against him. On April 27, 2010, Defendants filed a motion to dismiss Plaintiff's Second Amended Complaint ("SAC"). (Doc. 33.) Defendants contend:
(1) they are entitled to qualified immunity; (2) Plaintiff failed to timely file the SAC; (3) the SAC failed to state a claim upon which relief can be granted; and (4) Plaintiff did not exhaust his administrative remedies. (Doc. 33 at 1-2.) On August 24, 2010, Magistrate Judge Victor E. Bianchini issued a Report and Recommendation ("R&R") recommending Defendants' motion to dismiss be granted. Plaintiff did not file any objections to the R&R or to Defendants' motion.
When no objections are filed, the court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court, 501 F. 2d 196, 201 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). After a full review, the Court adopts the Magistrate Judge's recommendation in full and GRANTS Defendants' motion to dismiss. Plaintiff's SAC is dismissed without prejudice and without leave to amend.
IT IS SO ORDERED.
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