Opinion
CASE NO. 11cv1687 BEN (BGS)
02-27-2013
RAMON MURILLO, Plaintiff, v. P. FLOURNOY, et al., Defendants.
ORDER ADOPTING
REPORT AND
RECOMMENDATION TO;
(1) DENY PLAINTIFF'S
REQUEST TO TREAT THE
MOTION TO DISMISS AS A
MOTION FOR SUMMARY
JUDGMENT; AND
(2) GRANT DEFENDANTS'
MOTION TO DISMISS
PLAINTIFF'S FIRST
AMENDED COMPLAINT
[ECF Nos. 34, 40, 50]
Plaintiff, a prisoner proceeding pro se and in forma pauperis, filed an amended civil rights complaint on November 29, 2011. (ECF No. 10.) Defendants moved to dismiss on various grounds. (ECF No. 34.) On January 30, 2013, Magistrate Judge Bernard G. Skomal issued a Report and Recommendation recommending that Defendants' Motion to Dismiss be granted. (ECF No. 50.) Plaintiff moved for an extension of time to file an Objection but the Court denied that request. (ECF Nos. 51, 52.) No objections were filed by the February 18, 2013 deadline. For the reasons stated below, the Court adopts the well-reasoned Report and Recommendation of the Magistrate Judge and grants Defendants5 Motion to Dismiss.
A district judge "may accept, reject, or modify the recommended decision" of a Magistrate Judge on a dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. §636(b)(l). Moreover, the court shall make a de novo determination of those portions of the report and recommendation to which objection is made. FED. R. CIV. P. 72. "The 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. . . . Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original).
In the Report and Recommendation, Magistrate Judge Skomal correctly considered the Plaintiff's arguments and determined that Plaintiff failed to exhaust administrative remedies with respect to certain claims, and failed to adequately plead other claims. Moreover, Plaintiff's claims against Defendants in their official capacities are barred by the Eleventh Amendment. Accordingly, this Court ADOPTS in full the Report and Recommendation. Plaintiff's request for the Court to treat Defendants' motion to dismiss as a motion for summary judgment is DENIED. Defendants' motion to dismiss is GRANTED.
IT IS SO ORDERED.
_______________
HON. ROGER T. BENITEZ
United States District Court Judge