Holestine v. R.J. Donovan Correctional Facility

Opinion

ERNEST KELLY HOLESTINE, Case No.: 18-CV-2094-AJB(WVG)

Plaintiff, ORDER: v. (1) ADOPTING THE REPORT AND RECOMMENDATION (Doc. FACILITY et al., No. 55); Defendants. (2) GRANTING DEFENDANTS’ MOTION TO DISMISS, (Doc. No. 49);

(3) DENYING IN PART AS MOOT DEFENDANTS’ MOTION TO STRIKE (Doc. No. 49);

(4) GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, (Doc. No. 52); AND

(5) GRANTING PLAINTIFF’S INCREASE PAGE LIMIT, (Doc. No. 52).

Presently before the Court are (1) Defendants’ motion to strike Plaintiff’s punitive damages claim, and motion to dismiss Plaintiff’s Equal Protection claim, (Doc. No. 49), and (2) Plaintiff’s motion for leave to file Third Amended Complaint, and request to increase page limit, (Doc. No. 52). The Court referred this matter to Magistrate William V. Gallo for a Report and Recommendation (the “R&R”), which was issued on July 23, 2020. (Doc. No. 55.) The R&R recommends that the Court: (1) grant Defendants’ motion to dismiss with regard to Plaintiff’s Equal Protection claim; (2) deny in part as moot Defendant’s motion to strike; (3) grant Plaintiff’s motion for leave to file Third Amended Complaint; and (4) grant Plaintiff’s motion for leave to increase page limit. (Id. at 21.) The parties were instructed to file written objections to the R&R by August 23, 2020, and that no replies in response will be accepted. (Id.) Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district judge’s duties in connection with a magistrate judge’s R&R. 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 judge.” 28 U.S.C. § 636(b)(1); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of objection(s), the Court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory committee note to the 1983 amendment; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Neither party has filed objections to the R&R. Thus, having reviewed the R&R, the Court finds it thorough, well-reasoned, and contains no clear error. Accordingly, the Court hereby: (1) ADOPTS the R&R in its entirety; (2) GRANTS Defendants’ motion to dismiss with regard to Plaintiff’s Equal Protection claim; (3) DENIES IN PART AS MOOT Defendants’ motion to strike; (4) GRANTS Plaintiff’s motion for leave to file Third Amended Complaint, advising Plaintiff that the Third Amended Complaint must not include punitive damages under the Rehabilitation Act and the Americans with Disabilities Act; and (5) GRANTS Plaintiff’s motion for leave to increase page limit. Plaintiff is to file a Third Amended Complaint, not inconsistent with this Order or R&R by October 26, 2020. IT IS SO ORDERED. Dated: August 27, 2020 Q ZS iz : 2 Hon. Anthony J.@Battaglia United States District Judge