Opinion
Case No. 16-cv-0063 DMS (WVG)
01-11-2017
ORDER (1) ADOPTING REPORT AND RECOMMENDATION (2) GRANTING MOTION FOR SUMMARY JUDGMENT AND (3) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
On January 8, 2016, Plaintiff Kenneth L. Faulkner, Jr., a state prisoner proceeding pro se, filed a Complaint pursuant to 42 U.S.C. § 1983. On July 11, 2016, Defendants filed a motion to dismiss, and Defendants Buck and Farias also filed a motion for summary judgment.
On December 2, 2016, Magistrate Judge William V. Gallo issued a Report and Recommendation ("R&R"), recommending that the Court grant the motion for summary judgment for failure to exhaust administrative remedies, and grant in part and deny in part the motion to dismiss. Specifically, the Magistrate Judge recommended the Court grant the motion to dismiss Plaintiff's official capacity and injunctive relief claims against all Defendants and qualified immunity claims against Defendants Buck and Farias, and deny the motion insofar as it argues Plaintiff's claims arising out of the disciplinary hearing are barred by Heck v. Humphrey, 512 U.S. 477 (1994).
The deadline for filing objections was December 28, 2016. No objections were filed, and neither party has requested additional time to do so. Consequently, the Court may adopt the R&R on that basis alone. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Nevertheless, having reviewed de novo the Magistrate Judge's R&R, this Court adopts the R&R in its entirety. Defendants Buck and Farias's motion for summary judgment is granted. Because the Court grants their motion for summary judgment, the motion to dismiss is denied as moot as to Defendants Buck and Farias, but granted as to Defendants Phillips and Posner.
Because Plaintiff's individual capacity claims against Defendants Posner and Phillips remain pending, pursuant to Federal Rule of Civil Procedure 12(a)(1)(C), Defendants Phillips and Posner shall file their Answer to the Complaint within 21 days of the filing of this Order.
IT IS SO ORDERED. Dated: January 11, 2017
/s/_________
The Honorable Dana M. Sabraw
United States District Judge