The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER (1) ADOPTING IN PART RECOMMENDATION AND (2) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DECLINING TO ADOPT IN PART REPORT AND (ECF Nos. 107, 120)
Presently before the Court is Magistrate Judge Louisa S. Porter's report and recommendation ("R&R") advising the Court to grant in part and deny in part Defendants' motion to dismiss. (R&R, ECF No. 120) Also before the Court are Plaintiff Anthony D. Dawkins's ("Plaintiff" or "Dawkins") objections to the R&R, (Obj., ECF No. 122), and Defendants' late-filed reply,*fn1 (Reply, ECF No.123).
Magistrate Judge Porter's R&R contains a thorough and accurate recitation of the facts and procedural history underlying Plaintiff's pro se complaint, brought pursuant to 42 U.S.C. § 1983. (R&R 1--7, ECF No. 120) This Order incorporates by reference the facts as set forth in the R&R.
Defendants did not file objections to the R&R. Dawkins objected to the R&R on December 15, 2011, (Obj., ECF No. 122), to which Defendants replied on January 3, 2012, (Reply, ECF No. 123). Plaintiff's objections "exclusively focus on those claims and/or issues which the court granted the Defendants in its recommendation," namely, claims one and three, and the claims for declaratory and injunctive relief. (Obj. 2, ECF No. 122) For convenience, the Court summarizes the facts and procedural history relevant to those claims here.
1. Claim One -- Excessive Force in Violation of Eighth Amendment
On December 14, 2003, Dawkins, a prisoner of the State of California, was allegedly placed in the Administrative Segregation Unit ("ASU") "based on fabricated allegations of threatening staff." (Fourth Am. Compl. ("4AC") 8, ECF No. 102) With regard to the excessive force used against him, Dawkins alleges that he was "forcefully shoved up against a wall," his "feet were forcefully kicked apart," and he "suffered three forceful blows to his ribs." (Id.) As a result, Dawkins alleges that he suffered "periodic rib pain" and "psychological distress." (Id.)
2. Claim Three -- Retaliation in Violation of the First Amendment
On June 16, 2004, Dawkins allegedly had a dispute with Defendant Moschetti "in regards to obtaining legal documents for an appeal related to the excessive force incident" detailed above. (Id. at 10) Dawkins alleges that he was "placed in ASU for pursuing said claim but under the pretext of overfamiliarity which was retaliatory." (Id.)
Dawkins, a prisoner proceeding pro se, first filed a civil rights complaint concerning the above events on June 14, 2007. (Dawkins v. Woodward, No. 07-cv-1088-BEN-NLS, ECF No. 1) After several rounds of amendments, Dawkins filed a third amended complaint on July 28, 2008, (id., ECF No. 11), which District Judge Roger T. Benitez eventually dismissed for want of prosecution on February 2, 2009, (id., ECF No. 17).
Subsequently, Dawkins filed his original complaint in the instant case on May 11, 2009. (Compl., ECF No. 1) And, again after several rounds of amendments, Dawkins filed the operative 4AC. (4AC, ECF No. 102) Defendants moved to dismiss, (Mot. to Dismiss, ECF No. 107), and Magistrate Judge Porter issued an R&R recommending that claims one and three be dismissed as time barred, (R&R 13, 14, ECF No. 120).
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's R&R. The district court "shall 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)(c); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980). However, in the absence of a 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. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).