United States District Court, S.D. California
WILLIAM Q. HAYES United States District Judge.
matter before the Court is the review of the Report and
Recommendation (ECF No. 34) issued by United States
Magistrate Judge Ruben B. Brooks, and the Objection to the
Report and Recommendation filed by Defendants (ECF No. 35).
December 11, 2013, Plaintiff Michael Anthony Knox commenced
this action by filing a Complaint pursuant to 42 U.S.C.
§ 1983. (ECF No. 1).
March 21, 2016, Defendants F. Castaneda, E. Delgado, G.
Mejia, D. Hamilton, W. Enders, and M. Whitman
(“Defendants”) filed a motion to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). (ECF No. 27). On April 22, 2016, Plaintiff filed a
document titled “Plaintiff['s] motion for defense
and motion of objection to all of the [Defendants']
points of authority for concerning their [Defendants']
notice of motion and motion to dismiss complaint” (the
“Opposition”). (ECF No. 30). On April 22, 2016,
Defendants filed a reply. (ECF No. 32).
November 17, 2016, the Magistrate Judge issued a Report and
Recommendation recommending that this Court grant in part and
deny in part Defendants' motion to dismiss (ECF No. 27),
and terminate Plaintiff's “motion for defense and
motion of objection to all of the [Defendants'] points of
authority for concerning their [Defendants'] notice of
motion and motion to dismiss complaint” (ECF No. 30).
(ECF No. 34). On November 29, 2016, Defendants filed an
objection. (ECF No. 35). As of the date of this Order, the
record reflects that Plaintiff has not filed an objection to
the Report and Recommendation or a response to
Defendants' Objection to the Report and Recommendation.
duties of the district court in connection with a Report and
Recommendation of a magistrate judge are set forth in Federal
Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1).
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. Remsing, 874 F.2d 614, 617 (9th Cir.
1989). The district court need not review de novo those
portions of a Report and Recommendation to which neither
party objects. See United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“Neither the
Constitution nor the [Federal Magistrates Act] requires a
district judge to review, de novo, findings and
recommendations that the parties themselves accept as
the Court declines to adopt the portion of the Report &
Recommendation addressing the Eighth Amendment claim as it
applies to the search of Plaintiff's cell. (ECF No. 34 at
11:27 - 13:3). The Eighth Amendment prohibits searches of
prisoner cells “conducted only for ‘calculated
harassment.'” Vigliotto v. Terry, 873 F.2d
1201, 1203 (9th Cir. 1989). However, “[a]fter
incarceration, only the unnecessary and wanton infliction of
pain constitutes cruel and unusual punishment forbidden by
the Eighth Amendment.” Ingraham v. Wright, 430
U.S. 651, 670 (1977) (citations omitted). The Court finds
that the facts alleged in this case are not adequate to
support an Eighth Amendment claim for calculated harassment
relating to the search of Plaintiff's cell. The motion to
dismiss Plaintiff's Eighth Amendment claim arising from
the cell search is granted as to all Defendants, with leave
object to the Court's recommendation that
‘Defendants' request that the $250, 000 damages
amount in his Complaint be stricken should be denied with
prejudice as to [Plaintiff's] First Amendment
claim.'” (ECF No. 35 at 2) (quoting ECF No. 34 at
33). Defendants “challenged the amount of compensatory
damages Plaintiff requested in the Complaint-namely, $250,
000” because “Plaintiff alleges no physical
contend that Plaintiff “may recover compensatory . . .
damages” for his First Amendment claim “only . .
. if he can prove them” by demonstrating the alleged
“constitutional deprivation resulted in an injury for
which compensation traditionally would have been provided at
common law-e.g., physical harm, emotional distress, loss of
reputation, or monetary loss.” Id. at 3.
Defendants contend that Plaintiff's request for
compensatory damages “must be stricken because
[Plaintiff] can never recover any damages beyond nominal and
punitive damages.” Id. at 4.
1997e(e) of the Prison Reform Litigation Act
(“PLRA”) states that
No Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental
or emotional injury suffered while in custody without a prior
showing of ...