Holestine v. R.J. Donovan Correctional Facility ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERNEST KELLY HOLESTINE, Case No.: 18-CV-2094-AJB(WVG) 12 Plaintiff, ORDER: 13 v. (1) ADOPTING THE REPORT 14 R.J. DONOVAN CORRECTIONAL AND RECOMMENDATION (Doc. FACILITY et al., 15 No. 55); Defendants. 16 (2) GRANTING DEFENDANTS’ 17 MOTION TO DISMISS, (Doc. No. 49); 18 (3) DENYING IN PART AS MOOT 19 DEFENDANTS’ MOTION TO STRIKE (Doc. No. 49); 20 21 (4) GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE 22 THIRD AMENDED COMPLAINT, 23 (Doc. No. 52); AND 24 (5) GRANTING PLAINTIFF’S 25 MOTION FOR LEAVE TO INCREASE PAGE LIMIT, (Doc. No. 26 52). 27 28 1 Presently before the Court are (1) Defendants’ motion to strike Plaintiff’s punitive 2 damages claim, and motion to dismiss Plaintiff’s Equal Protection claim, (Doc. No. 49), 3 and (2) Plaintiff’s motion for leave to file Third Amended Complaint, and request to 4 increase page limit, (Doc. No. 52). The Court referred this matter to Magistrate William V. 5 Gallo for a Report and Recommendation (the “R&R”), which was issued on July 23, 2020. 6 (Doc. No. 55.) The R&R recommends that the Court: (1) grant Defendants’ motion to 7 dismiss with regard to Plaintiff’s Equal Protection claim; (2) deny in part as moot 8 Defendant’s motion to strike; (3) grant Plaintiff’s motion for leave to file Third Amended 9 Complaint; and (4) grant Plaintiff’s motion for leave to increase page limit. (Id. at 21.) The 10 parties were instructed to file written objections to the R&R by August 23, 2020, and that 11 no replies in response will be accepted. (Id.) 12 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 13 judge’s duties in connection with a magistrate judge’s R&R. The district judge must “make 14 a de novo determination of those portions of the report . . . to which objection is made[,]” 15 and “may accept, reject, or modify, in whole or in part, the findings or recommendations 16 made by the magistrate judge.” 28 U.S.C. § 636(b)(1); United States v. Remsing, 874 F.2d 17 614, 617 (9th Cir. 1989). However, in the absence of objection(s), the Court “need only 18 satisfy itself that there is no clear error on the face of the record in order to accept the 19 recommendation.” Fed. R. Civ. P. 72(b) advisory committee note to the 1983 amendment; 20 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 21 Neither party has filed objections to the R&R. Thus, having reviewed the R&R, the 22 Court finds it thorough, well-reasoned, and contains no clear error. Accordingly, the Court 23 hereby: (1) ADOPTS the R&R in its entirety; (2) GRANTS Defendants’ motion to dismiss 24 with regard to Plaintiff’s Equal Protection claim; (3) DENIES IN PART AS MOOT 25 Defendants’ motion to strike; (4) GRANTS Plaintiff’s motion for leave to file Third 26 Amended Complaint, advising Plaintiff that the Third Amended Complaint must not 27 include punitive damages under the Rehabilitation Act and the Americans with Disabilities 28 Act; and (5) GRANTS Plaintiff’s motion for leave to increase page limit. 1 Plaintiff is to file a Third Amended Complaint, not inconsistent with this Order or 2 R&R by October 26, 2020. 3 4 || IT IS SO ORDERED. 5 6 ||Dated: August 27, 2020 Q ZS iz : 2 7 Hon. Anthony J.@Battaglia 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28