Baker v. Battad

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA TOMMIE LEE BAKER, III, Case No.: 19-CV-1438-AJB (BLM) 12 Plaintiff, ORDER: v. (1) ADOPTING THE REPORT R. BATTAD AND O. ARIZAGA, AND RECOMMENDATION (Doc.

15 Defendants. No. 13); AND (2) GRANTING IN PART AND 17 DENYING IN PART DEFENDANTS’ MOTION TO DISMISS (Doc. No. 6) 19 Presently before the Court is Defendants’ motion to dismiss for failure to exhaust administrative remedies, or in the alternative, motion to dismiss for failure to state a claim.

21 (Doc. No. 6.) The Court referred this matter to Magistrate Judge Barbara Lynn Major for a Report and Recommendation (the “R&R”), which was issued on January 30, 2020. (Doc.

23 No. 13.) The Magistrate Judge recommends that Defendants’ motion to dismiss be granted in part. (Id. at 1.) The parties were instructed to file written objections to the R&R by February 26, 2020, and replies by March 18, 2020. (Id. at 12–13.)

26 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 3 614, 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).

7 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; (2) GRANTS Defendants’ motion to dismiss □□□□□□□□□□ □ Eighth Amendment claim against Defendant Battad WITH LEAVE TO AMEND and || Defendants’ motion to dismiss for failure to state a retaliation claim against Defendant || Arizaga WITH LEAVE TO AMEND; and (3) DENIES Defendants’ motion to dismiss || Plaintiff's claim against Defendant Battad on qualified immunity grounds without prejudice. Plaintiff may file an Amended Complaint consistent with the Magistrate Judge’s ||R&R by August 1, 2020.

17 IS SO ORDERED.

19 || Dated: June 23, 2020 20 Hon. Anthony J Hatta 71 United States District Judge