Opinion
Case No.: 17cv882-CAB-BLM
03-28-2018
DUWAYNE JACKSON, Plaintiff, v. DANIEL PARAMO, et al., Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [Doc. No. 31]; GRANTING MOTION TO DISMISS WITH RESPECT TO DEFENDANT PARAMO [Doc. No. 25]; DENYING MOTION FOR JUDGMENT ON PROCEEDINGS [Doc. No. 35]; AND GRANTING MOTION FOR LEAVE TO AMEND COMPLAINT [Doc. No. 37]
On May 2, 2017, Plaintiff Steven Duwayne Jackson, a state prisoner proceeding pro se and in forma pauperis, filed a complaint for violation of his civil rights pursuant to 42 U.S.C. § 1983, against Defendants Paramo, Romero, Valdovinos, and Navarro alleging claims under the Eighth and Fourteenth Amendments. [Doc. No. 1.] On June 14, 2017, Plaintiff filed a First Amended Complaint ("FAC"). [Doc. No. 11.] On September 25, 2017, Defendants filed a motion to dismiss the FAC as to Defendant Warden Paramo. [Doc. No. 25.] On December 18, 2017, Magistrate Judge Barbara L. Major issued a Report and Recommendation ("Report") to grant Defendants' motion to dismiss with leave to amend as to the Eighth and Fourteenth Amendment claims against Defendant Paramo. [Doc. No. 31.] Objections to the Report were to be filed by February 23, 2018. [Doc. No. 31 at 16.]
On February 12, 2018, Plaintiff filed a Motion for Judgment on the Proceedings. [Doc. No. 35.] On February 28, 2018, Plaintiff filed a Motion for Leave to Amend Complaint. [Doc. No. 37.] Plaintiff did not, however, file any objections to the Report.
A. Report/Motion to dismiss.
A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. However, "[t]he statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original).
While Plaintiff did not file any objections, following de novo review, the Court finds the Report to be thorough, complete, and an accurate analysis of the legal issues presented in the motion to dismiss. Therefore, the Court: ADOPTS the Report in full and GRANTS the motion to dismiss with leave to amend as to the Eighth and Fourteenth Amendment claims with respect to Defendant Paramo.
B. Motion for Judgment on Proceedings.
The Court understands this to be a motion for judgment on the pleadings, as Plaintiff cites to Rule 12(c).
In the Motion for Judgment on the Proceedings, Plaintiff argues that the motion to dismiss should be denied because Defendants did not file a reply to his opposition. However, while reply papers are authorized by Local Rule 7.1.e.3, they are not required. Therefore, Plaintiff's argument is rejected, and the Motion for Judgment on the Proceedings is DENIED.
C. Motion for Leave to Amend Complaint.
In the Motion for leave to Amend Complaint, Plaintiff seeks leave to file a proposed (Second) Amended Complaint ("SAC"). Plaintiff has already been granted leave to amend as to the claims against Defendant Paramo. However, the SAC also seeks to add additional defendants. Given that the current defendants, except defendant Paramo, have not responded to the FAC, the most efficient course is to allow the filing of the SAC. Therefore, the Motion for Leave to Amend Complaint is GRANTED.
The docket shall reflect that Doc. No. 37 is now the Second Amended Complaint.
Defendants Paramo, Romero, Valdovinos and Navarro shall respond to the SAC by April 27 , 2018 .
As to the newly-added Defendants -- L. Coronado, T. Geisinger, D. Clayton, and M. Deel - the Court:
1. DIRECTS the Clerk to issue an amended summons as to Plaintiff's SAC [Doc. No. 37] to include Defendants Coronado, Geisinger, Clayton and Deel, and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified copy of the SAC, and the amended summons so that he may serve them upon these Defendants. Upon receipt of this "IFP Package," Plaintiff must complete the Form 285s as completely and accurately as possible, include an address where each Defendant may be served, see S.D. Cal. CivLR 4.1.c, and return them to the United States Marshal according to the instructions the Clerk provides in the letter accompanying his IFP package.
2. ORDERS the U.S. Marshal to serve a copy of the SAC and amended summons upon Defendants Coronado, Geisinger, Clayton and Deel, as directed by Plaintiff on the USM Form 285s provided to him. All costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
3. ORDERS Defendants Coronado, Geisinger, Clayton and Deel, once served, to respond to Plaintiff's SAC within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).
4. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to serve upon Defendants Coronado, Geisinger, Clayton and Deel, or, if appearance has been entered by counsel, upon Defendants' counsel, a copy of every further pleading, motion, or other document submitted for the Court's consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original document he seeks to file with the Clerk of the Court, a certificate stating the manner in which a true and correct copy of that document has been was served on Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by the Court which has not been properly filed with the Clerk, or which fails to include a Certificate of Service upon the Defendants, may be disregarded.
IT IS SO ORDERED. Dated: March 28, 2018
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge