Dragasits v. Rucker

Opinion

STEPHEN DRAGASITS, Case No.: 3:18-cv-00512-WQH-AGS

ORDER Plaintiff, v. T. RUCKER, et al.,

Defendants. HAYES, Judge: The matters before the Court are the Motion to Dismiss filed by Defendants T. Rucker., L. Marshall, and I. Figueroa (ECF No. 29); the Motion for leave to Amend Complaint filed by Plaintiff (ECF No. 38); and the Report and Recommendation issued by the Magistrate Judge (ECF No. 39). The 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). The district judge 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). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); 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 correct.”). On February 10, 2020, Plaintiff filed an Objection. (ECF No. 40). Plaintiff requests to amend the second cause of action (violation of first Amended rights) of the Second Amended Complaint. The Court has reviewed the Report and Recommendation, the record, and the submissions of the parties. IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 17) is ] ADOPTED in its entirety. Defendants’ Motion to Dismiss Count 1 (Eighth Amendment deliberate indifference) is DENIED. Defendants’ Motion to Dismiss Count 3 (medical malpractice) is DENIED as moot. Defendants’ Motion to Dismiss Count 3 (violation of California Government Code § 845.6) is GRANTED without prejudice. Defendants’ Motion to Dismiss Count 4 (declaratory and injunctive relief pursuant to Article I, §§ 15 17 of the California Constitution) is DENIED. Defendants’ Motion to Dismiss Count 4 (monetary damages pursuant to Article I, §§ 15 and 17 of the California Constitution) is GRANTED with prejudice. The Motion for leave to Amend Complaint filed by Plaintiff (ECF No. 38) is DENIED as moot. Plaintiff shall file a Motion for Leave to File a Third Amended Complaint on or before March 13, 2020. Dated: February 13, 2020 itt Z. A a Hon. William Q. Hayes United States District Court