UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
September 5, 2012
GREGORY WAYNE QUINN,
D. SINGH, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART MOTIONS TO DISMISS
Plaintiff Gregory Wayne Quinn, a state prisoner proceeding pro se, filed an action pursuant to 42 U.S.C. Section 1983 alleging violation of his constitutional rights. He claims three prison officials violated his Eighth Amendment rights by being deliberately indifferent to the threats to his safety.
The case was referred to United States Magistrate Judge Jan M. Adler for a report and recommendation in accordance with 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.3. Initially, Defendants F. Rodriguez and B. Smith filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Subsequently, Defendant D. Singh, represented by separate counsel, also filed a Rule 12(b)(6) motion. On July 27, 2012 the Magistrate Judge issued a Report and Recommendation, recommending to grant the motions in part. Plaintiff has not filed any objections.
A district judge "may accept, reject, or modify the recommended disposition" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes.
Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not require review by the district court under a lesser standard. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original)..
In the absence of objections, the court ADOPTS the Report and Recommendation. For the reasons stated in the Report and Recommendation, it is ORDERED as follows:
1. The motion to dismiss filed by Defendants Rodriguez and Smith (doc. no. 18) is GRANTED. Plaintiff's claims for damages against Defendants Rodriguez and Smith in their official capacities are DISMISSED WITH PREJUDICE. In other respects, his Eighth and Fourteenth Amendment claims are DISMISSED WITH LEAVE TO AMEND.
2. The motion to dismiss filed by Defendant Singh (doc. no. 37) is GRANTED WITH LEAVE TO AMEND to the extent Plaintiff claims violation of his Fourteenth Amendment rights. In all other respects, her motion is DENIED.
3. No later than October 5, 2012, Plaintiff must file and serve either an amended complaint, or a notice of election not to file an amended complaint and stand on the complaint as presently alleged.
4. If Plaintiff files an amended complaint, Defendants' response must be filed and served within the time set forth in Federal Rule of Civil Procedure 15(a)(3).
IT IS SO ORDERED.
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