Jones v. Carraby

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM J. JONES, Case No.: 18-cv-1609-AJB-WVG

12 Plaintiff, ORDER: 13 v. (1) ADOPTING THE REPORT AND 14 ARNETT CARRABY, M.D.; TAYSON RECOMMENDATION and 15 DELENGOCKY, O.D.; MAJID MANI, M.D.; MICHAEL FOYLE, O.D.; AND (2) GRANTING THE MOVING 16 ROGELIO ORTEGA, M.D., DEFENDANTS’ MOTION TO 17 DISMISS Defendants. 18 (Doc. Nos. 43, 47) 19

20 I. BACKGROUND 21 This is a civil rights action under the Civil Rights Act, 42 U.S.C. § 1983, filed by 22 William J. Jones (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, 23 against Arnett Carraby, M.D. (“Dr. Carraby”), Tayson Delengocky, D.O. (“Dr. 24 Delengocky”), Majid Mani, M.D. (“Dr. Mani”), Michael Foyle, O.D., and Rogelio Ortega, 25 M.D. (collectively, “Defendants”). The Second Amended Complaint (“SAC”) is the 26 operative complaint, and therein, Plaintiff brings Eighth Amendment claims against 27 Defendants arising out of an alleged botched surgery on his right eye and the post-operative 28 care he received. (Doc. No. 36.) 1 Before the Court is Drs. Carraby, Delengocky, and Mani’s (“Moving Defendants”) 2 motion to dismiss the SAC as to the claims against them. (Doc. No. 43.) The Court referred 3 the matter to Magistrate Judge William V. Gallo for a Report and Recommendation 4 (“R&R”), which he issued on December 21, 2021. (Doc. No. 47.) The R&R recommends 5 the Court grant the Moving Defendants’ motion to dismiss and dismiss the SAC against 6 the Moving Defendants without leave to amend. (Id. at 2, 11.)1 The parties were instructed 7 to file written objections with the Court no later than January 21, 2022. (Id. at 11.) 8 II. DISCUSSION 9 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 10 judge’s duties in connection with a magistrate judge’s R&R. The district judge must “make 11 a de novo determination of those portions of the report . . . to which objection is made[,]” 12 and “may accept, reject, or modify, in whole or in part, the findings or recommendations 13 made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also United States v. 14 Remsing, 874 F.2d 614, 617 (9th Cir. 1989). “The statute [§ 636(b)(1)(C)] makes it clear 15 that the district judge must review the magistrate judge’s findings and recommendations 16 de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 17 1114, 1121 (9th Cir. 2003) (emphasis in original). Thus, in the absence of timely 18 objection(s), the court “need only satisfy itself that there is no clear error on the face of the 19 record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory committee’s 20 note to 1983 amendment; Reyna-Tapia, 328 F.3d at 1123. 21 // 22 // 23 // 24 // 25 // 26 // 27

28 1 Neither party has filed an objection to the Magistrate Judge’s R&R. Having 2 reviewed the R&R, the Court finds it thorough, well-reasoned, and contains no clear error. 3 || Accordingly, the Court hereby ADOPTS the Magistrate Judge’s R&R in its entirety and 4 ||GRANTS the Moving Defendants’ motion and DISMISSES WITHOUT LEAVE TO 5 || AMEND the SAC against the Moving Defendants (Drs. Carraby, Delengocky, and Mani). 6 ||(Doc. Nos. 43, 47.) The SAC remains operative as to the remaining defendants. 7 IT IS SO ORDERED. 8 ||Dated: January 25, 2022

10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28