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Darren J. Norman v. Larry Small

December 14, 2010

DARREN J. NORMAN
PLAINTIFF, ORDER
v.
LARRY SMALL, WARDEN; S. RITTER, CORRECTIONAL OFFICER; W. NEWMAN, CORRECTIONAL SERGEANT; B.C. RIES, CORRECTIONAL LIEUTENANT; A. BELTRAN, CORRECTIONAL LIEUTENANT; D. BELL, CORRECTIONAL APPEALS COORDINATOR; N. GRANNIS, CORRECTIONAL APPEALS BRANCH OFFICER; C. ESPITIA, APPEALS COORDINATOR, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

The matters before the Court are the Magistrate Judge's Report and Recommendation filed on July 29, 2010, recommending that the Court grant Defendants' Motion to Dismiss (ECF No. 33), and Plaintiff's Motion for Default Judgment. (ECF No. 37).

I. MOTION TO DISMISS

BACKGROUND

On October 8, 2009, Plaintiff Darren J. Norman, a pro se state prisoner currently incarcerated at California State Prison in Calipatria, California, filed a complaint against prison officials alleging civil rights violations pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff claims Defendants violated his right to be free from cruel and unusual punishment, his right to due process, and his first amendment rights as a result of an unclothed body cavity search and as a result of a subsequent disciplinary proceeding. Plaintiff also alleges state law claims against Defendants including fraud, sexual harassment, hate crimes, and breach of contract.

On March 8, 2010, Defendants filed a Motion to Dismiss Plaintiff's Complaint contending that Defendants are immune from suit for money damages in their official capacities, Plaintiff failed to exhaust his administrative remedies for all of his claims other than the due process claim stemming from the disciplinary proceeding, and Plaintiff's complaint fails to state facts sufficient to support a claim for relief under Rule 12b(6) of the Federal Rules of Civil Procedure. (ECF No. 14).

On May 5, 2010, Plaintiff filed an Opposition to Defendants' Motion to Dismiss. (ECF No. 20). On May 13, 2010, Defendants filed a Reply. (ECF No. 21). On June 3, 2010, Plaintiff filed a Surreply. (ECF No. 23).

On June 24, 2010, Plaintiff filed an Affidavit of Truth. (ECF No. 28).

On July 29, 2010, the Magistrate Judge issued a Report and Recommendation ("R&R") recommending that Defendants' Motion to Dismiss be granted. (ECF No. 33). The R&R recommends that Plaintiff's claim for damages against Defendants should be dismissed because they are barred by the Eleventh Amendment. The R&R recommends that all of Plaintiff's claims, except for his due process claim related to the disciplinary proceeding, should be dismissed because Plaintiff did not exhaust his administrative remedies. The R&R recommends that Plaintiff's due process claim should be dismissed because it is barred by the favorable termination doctrine and, alternatively, because Plaintiff fails to state a claim.

In addition, the R&R recommends that Plaintiff's First and Eighth Amendment claims should be dismissed for failure to state a claim, the claims against Warden Small should be dismissed because they are based on respondeat superior, and Plaintiff's state law claims should be dismissed for failure to comply with the California Tort Claims Act.

On September 2, 2010, Plaintiff filed Objections to Report and Recommendation.

On September 22, 2010, Plaintiff filed a Motion for Default Judgment due to Defendants' failure to respond to the Affidavit of Truth filed. (ECF No. 37).

OBJECTIONS TO REPORT & RECOMMENDATION

Plaintiff contends that the R&R is based on "false pretenses" because Defendants "lied [to the] court and presented several false statements to support their grounds for dismissal." (ECF No. 35 at 1). Plaintiff contends that he previously requested discovery that "he informed the court would prove Defendant[s'] false statements . . . , but yet the court refused to allow [him] to obtain the necessary documents." Id. at 2. Plaintiff contends that the Magistrate Judge "adopt[ed] the Defendant[s'] false statements as facts" when ...


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