Opinion
ORDER: (1) ADOPTING MAGISTRATE JUDGE GALLO'S REPORT AND RECOMMENDATION; (2) GRANTING DEFENDANTS' MOTION TO DISMISS
(Doc. Nos. 16, 35.)
JANIS L. SAMMARTINO, District Judge.
Plaintiff Paul Denham, an prisoner proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against Defendants Correctional Officer Aranda, Nurse Benvin, Captain Marrero, E.A. Contreras, Silvia Garcia, P. Cortez, Director of Corrections Hernandez, Secretary of the California Department of Correction and Rehabilitation Matthew Cate, and Mr. K. Smith. The Complaint alleges that Plaintiff's civil rights were violated by Defendants in August 2007 while housed at the Richard J. Donovan Correctional Facility. On December 4, 2009, Defendants Contreas, Cortez, Hernandez, Marrero and K. Smith filed a motion to dismiss Plaintiff's complaint for failure to state a claim. (Doc. No. 16.) Defendant Cate subsequently filed a notice of joinder to Defendants' motion. Defendants Garcia, Aranda and Benvin did not join the motion, as they have not yet been served in the action. Plaintiff filed an opposition to the motion on January 29, 2010 (Doc. No. 28) and Defendants filed a reply on February 11, 2010. (Doc. No. 30.)
The Court notes that there is a pending motion to direct the United States Marshal to re-attempt service of these Defendants. ( See Doc. No. 15.)
On May 3, 2010, Magistrate Judge William V. Gallo issued a Report and Recommendation (R&R) recommending this Court grant Defendants' motion to dismiss all causes of action. (Doc. No. 35.) Specifically, the R&R recommends that the causes of action for Eighth Amendment cruel and unusual punishment and deliberate indifference, retaliation, and violation of due process be dismissed without prejudice with leave to amend. ( Id. ) Further, the R&R recommends the Court dismiss Plaintiff's claim for damages against Defendants in their official capacities with prejudice and dismiss the claim for damages against Defendants in their individual capacities without prejudice. ( Id. )
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of a district court 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." 28 U.S.C. 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). 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." Fed.R.Civ.P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
In this case, Plaintiff has failed to timely file objections to Magistrate Judge Gallo's R&R. Having reviewed the R&R, the Court finds that it is thorough, well reasoned, and contains no clear error. Therefore, the Court adopts the R&R in full. The Court hereby: (1) ADOPTS Magistrate Judge Gallo's Report and Recommendation, (2) GRANTS Defendants' motion to dismiss, and (3) GRANTS leave to amend those causes of action and claim for damages which are dismissed without prejudice. Plaintiff may file a First Amended Complaint curing the deficiencies stated in Magistrate Judge Gallo's R&R within 45 days of the date this Order is electronically docketed.
IT IS SO ORDERED.