Opinion
Case No. 15-cv-2745 DMS (WVG)
10-11-2017
DAVID B. DURAN, Plaintiff, v. OMAR MANDUJO, et al., Defendants.
ORDER (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND (2) GRANTING MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
[ECF NOS. 91, 104]
On December 7, 2015, Plaintiff David B. Duran, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. On May 19, 2017, Plaintiff filed his Fourth Amended Complaint ("FAC"). On June 2, 2017, Defendants Larry Lewis and Jonta Yancy filed a Motion to Dismiss for Failure to State a Claim. On August 31, 2017, Magistrate Judge William V. Gallo issued a Report and Recommendation ("R&R"), recommending that the Court grant the motion. Plaintiff filed objections to the R&R. Defendants did not file a reply.
This Court, having reviewed de novo the Magistrate Judge's R&R and the objections thereto, adopts the Magistrate Judge's recommendation and GRANTS the Motion to Dismiss for Failure to State a Claim. The Court finds no basis for a certificate of appealability. The Clerk of Court shall enter judgment accordingly.
The Court notes the claim provision of Cal. Gov. Code § 911.2 is inoperative in an action brought under 42 U.S.C. § 1983, and the fact that Plaintiff did not allege compliance with that provision is irrelevant to his claim under the Civil Rights Act. See Williams v. Horvath, 16 Cal. 3d 834 (Cal. 1976); Toscano v. Cty. of L.A., 92 Cal. App. 3d 775, 784 (Cal. Ct. App. 1979). Here, Plaintiff expressly pleads only a claim under § 1983. To the extent the Magistrate Judge construes the FAC to include a claim for battery or assault, as he does in section IV(B)(v) Statute of Limitations, the Court agrees with the Magistrate Judge's analysis in section IV(B)(iv) California Government Claims Act. --------
IT IS SO ORDERED. Dated: October 11, 2017
/s/_________
Hon. Dana M. Sabraw
United States District Judge