The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [Doc. No. 5.]
On April 12, 2011, Plaintiff Glenn Edwin Clay, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in the California Superior Court, San Diego County. (Dkt. No. 1.) On May 27, 2011, the case was removed to this Court. (Id.) On June 3, 2011, Defendants filed a motion to dismiss the complaint. (Dkt. No. 5.) An opposition was not filed. On October 24, 2011, Magistrate Judge Brooks filed a report and recommendation granting in part and denying in part Defendants' motion to dismiss the complaint. (Dkt. No. 7.) Objections were filed by Defendants Savala and Garcia on November 21, 2011. (Dkt. No. 8.) For the reasons set forth below, the Court ADOPTS in part and DECLINES to ADOPT in part the report and recommendation granting in part and denying in part Defendants' motion to dismiss.
The complaint alleges claims against Defendants D. Lankford, G. Savala, M. Gomes, C. Ramos, S. Garcia and M. Hawthorne under 42 U.S.C. § 1983 based on Plaintiff's termination from his prison job as a forklift operator in the food department of the warehouse by Defendant Lankford and the failure to prevent the termination and to reinstate him by the remaining defendants. On May 27, 2011, the case was removed to this Court. (Dkt. No. 1.) On June 2, 2011, Defendants G. Savala, M. Gomes, C. Ramos, D. Lankford and S. Garcia were served with the complaint. Defendant M. Hawthorne has not been served with the complaint. The report and recommendation recommended that the Court should sua sponte dismiss Defendant Hawthorne without prejudice for Plaintiff's failure to comply with Federal Rule of Civil Procedure 4(m). No objections having been filed by Plaintiff and no reasons having been provided why Hawthorne has not been served, the Court ADOPTS the report and recommendation and sua sponte DISMISSES Defendant Hawthorne without prejudice.
A. Scope of Review of Magistrate Judge's Report and Recommendation
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." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). A district court may adopt those parts of a Magistrate Judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 152-53 (1985).
B. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)
Defendants Lankford, Ramos and Gomes did not file objections to the report and recommendation. After a review of the report and recommendation, the Court ADOPTS the report and recommendation and GRANTS Defendants Lankford, Ramos and Gomes' motion to dismiss the first, third and fourth causes of action against them, respectively, for Plaintiff's failure to comply with the statute of limitations. The Court GRANTS Plaintiff leave to amend to replead those claims that accrued after April 10, 2007.
In addition, the report recommended granting Defendants' motion to dismiss the state negligence cause of action for failure to plead compliance with the California Government Tort Claims Act. No objections having been filed, the Court ADOPTS the report and recommendation and GRANTS Defendants' motion to dismiss the state negligence cause of action with leave to amend.
Defendants Savala and Garcia filed objections to the report and recommendation based on the Magistrate Judge's denial of the what Defendants call "everything-but-the-kitchen-sink" claims because Defendants did not provide the Court with substantive arguments as to each specific claim or theories of liability but only provided a general argument that Plaintiff has not provided a "short and plain statement of the claim showing that the pleader is entitled to relief" as required under Federal Rule of Civil Procedure 8(a)(2).
Plaintiff alleges eleven claims against Defendants Savala and Garcia. They include due process, conspiracy, racial discrimination, discrimination, freedom of association, free speech, freedom from cruel and unusual punishment, deprivation of rights, equal protection, federal civil procedure, and negligence. (Compl. at 11-16, 55-66.)*fn1 The Court now addresses whether Plaintiff has stated a claim for relief as to Defendants Savala and Garcia under Federal Rule of Civil Procedure 12(b)(6).
C. Standard under Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief ...