James v. Lee ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KYLE ROBERT JAMES, Case No.: 16-cv-01592-AJB (JLB), consolidated with 17-cv-00859-AJB 12 Plaintiff, (MDD) 13 v. ORDER: 14 BARBARA LEE, et al., 15 Defendants. (1) ADOPTING THE REPORT AND RECOMMENDATION (Doc. 16 No. 159); AND 17 (2) GRANTING DEFENDANT’S 18 MOTION TO DISMISS, (Doc. No. 19 144) 20 Presently before the Court is Defendant Mark Kania’s (“Defendant”) motion to 21 dismiss the Fifth Amended Complaint. (Doc. No. 144.) The Court referred this matter to 22 Magistrate Judge Jill L. Burkhardt for a Report and Recommendation (the “R&R”), which 23 was issued on August 1, 2020. (Doc. No. 159.) The R&R recommends that the Court: (1) 24 grant in part and deny in part Defendant’s motion to dismiss; (2) grant Defendant’s 25 motion to dismiss Plaintiff’s claims against Defendant in his official capacity; (3) 26 grant Defendant’s motion to dismiss Plaintiff’s deliberate indifference to serious medical 27 needs claim on the ground that Defendant is entitled to qualified immunity; and (4) deny 28 Defendant’s motion to dismiss Plaintiff’s excessive force claim and Fourteenth 1 || Amendment claims for violation of bodily privacy and his right to be free from punishment. 2 || (Ud. at 29.) The parties were instructed to file written objections to the R&R by August 21, 3 || 2020, and a reply to the objections no later than September 4, 2020. Ud.) 4 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 5 ||judge’s duties in connection with a magistrate judge’s R&R. The district judge must “make 6 de novo determination of those portions of the report . . . to which objection is made[,]” 7 ||and “may accept, reject, or modify, in whole or in part, the findings or recommendations 8 made by the magistrate judge.” 28 U.S.C. § 636(b)(1); United States v. Remsing, 874 F.2d 9 617 (9th Cir. 1989). However, in the absence of objection(s), the Court “need only 10 satisfy itself that there is no clear error on the face of the record in order to accept the 11 |}recommendation.” Fed. R. Civ. P. 72(b) advisory committee note to the 1983 amendment; 12 || United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 13 Neither party has filed objections to the R&R. Thus, having reviewed the R&R, the 14 || Court finds it thorough, well-reasoned, and contains no clear error. Accordingly, the Court 15 hereby: (1) ADOPTS the R&R; (2) GRANTS Defendant’s motion to dismiss □□□□□□□□□□□ 16 ||claims against Defendant in his official capacity; (3) GRANT Defendant’s motion 17 ||to dismiss Plaintiff’s deliberate indifference to serious medical needs claim on the ground 18 Defendant is entitled to qualified immunity; and (4) DENY Defendant’s motion to 19 dismiss Plaintiff’s excessive force claim and Fourteenth Amendment claims for violation 20 || of bodily privacy and his right to be free from punishment. (Doc. No. 159.) 21 22 || IT ISSO ORDERED. 23 || Dated: September 11, 2020 | ZS i : Le 24 Hon. Anthony J.Battaglia 25 United States District Judge 26 27 28