UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 4, 2011
ARANDA, ET AL. ,
The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. Nos. 39, 42.)
Presently before the Court is Defendants' J. Hernandez, E. Contreras, E. Marrero, P. Cortez, K. Smith, and Matt Cate's*fn1 motion to dismiss Plaintiff's first amended complaint. (Doc. No. 39.) Also before the Court is Magistrate Judge Gallo's report and recommendation, recommending the Court grant Defendants' motion in part and deny the motion in part. (Doc. No. 42.)
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court's duties 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 judge." 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 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 in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
Here, neither party has timely file objections to the report and recommendation. Having reviewed it, the Court finds that it is thorough, well reasoned, and contains no clear error. Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Gallo's report and recommendation; (2) GRANTS WITH PREJUDICE Defendants' motion to dismiss with regard to Plaintiff's Eighth Amendment claim and qualified immunity for Hernandez, Smith, and Cate;
(3) and DENIES Defendants' motion to dismiss with regard to Plaintiff's retaliation claim against Marrero, Cortez, and Contreras, and qualified immunity for the three aforementioned parties. In short, Plaintiff's retaliation claim survives against Marrero, Cortez, and Contreras.
IT IS SO ORDERED.