Dragasits v. Rucker

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEPHEN DRAGASITS, Case No.: 3:18-cv-00512-WQH-AGS

12 ORDER Plaintiff, 13 v. 14 T. RUCKER, et al., 15

16 Defendants. 17 HAYES, Judge: 18 The matters before the Court are the Motion to Dismiss filed by Defendants T. 19 Rucker., L. Marshall, and I. Figueroa (ECF No. 29); the Motion for leave to Amend 20 Complaint filed by Plaintiff (ECF No. 38); and the Report and Recommendation issued by 21 the Magistrate Judge (ECF No. 39). 22 The duties of the district court in connection with a report and recommendation of a 23 magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 24 636(b). The district judge must “make a de novo determination of those portions of the 25 report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in 26 part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The 27 district court need not review de novo those portions of a Report and Recommendation to 28 1 || which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2 ||2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 3 (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to 4 ||review, de novo, findings and recommendations that the parties themselves accept as 5 || correct.”). 6 On February 10, 2020, Plaintiff filed an Objection. (ECF No. 40). Plaintiff requests 7 ||to amend the second cause of action (violation of first Amended rights) of the Second 8 ||Amended Complaint. The Court has reviewed the Report and Recommendation, the 9 ||record, and the submissions of the parties. 10 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 17) is 11 ||] ADOPTED in its entirety. Defendants’ Motion to Dismiss Count 1 (Eighth Amendment 12 ||deliberate indifference) is DENIED. Defendants’ Motion to Dismiss Count 3 (medical 13 ||malpractice) is DENIED as moot. Defendants’ Motion to Dismiss Count 3 (violation of 14 ||California Government Code § 845.6) is GRANTED without prejudice. Defendants’ 15 || Motion to Dismiss Count 4 (declaratory and injunctive relief pursuant to Article I, §§ 15 16 17 of the California Constitution) is DENIED. Defendants’ Motion to Dismiss Count 17 ||4 (monetary damages pursuant to Article I, §§ 15 and 17 of the California Constitution) is 18 GRANTED with prejudice. The Motion for leave to Amend Complaint filed by Plaintiff 19 (ECF No. 38) is DENIED as moot. Plaintiff shall file a Motion for Leave to File a Third 20 || Amended Complaint on or before March 13, 2020. 21 || Dated: February 13, 2020 itt Z. A a 22 Hon. William Q. Hayes 23 United States District Court 24 25 26 27 28