Opinion
CASE NO. 06CV2420 WQH (BLM).
February 27, 2008
ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the Report and Recommendation of Magistrate Judge Barbara L. Major recommending that the Court grant in part, and deny in part, Defendants' motion to dismiss Plaintiff's Second Amended Complaint. (Doc. # 46).
BACKGROUND
On May 22, 2007, Plaintiff Teddy Leroy Wilson, Jr. filed a Second Amended Complaint against Defendants Ismael Brizyela, Denise Johnson, and Hector Rubio alleging that Defendants violated Plaintiff's constitutional rights to equal protection, due process, and the right to be free from excessive force. (Doc. # 13). On June 12, 2007, this Court screened Plaintiff's Second Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b), and sua sponte dismissed Plaintiff's equal protection and due process claims. (Doc. # 14). The Court did not dismiss Plaintiff's excessive force claims for money damages and injunctive relief. (Doc. # 14).
On July 18, 2007, Defendants Rubio and Brizyela filed a motion to dismiss Plaintiff's claims for excessive force on grounds of Eleventh Amendment immunity. (Doc. # 25). On January 24, 2008, Plaintiff filed an opposition to the motion. (Doc. # 44). On January 29, 2008, Defendants filed a reply. (Doc. # 45).
On January 30, 2008, Magistrate Judge Barbara L. Major issued a Report and Recommendation recommending that this Court grant in part, and deny in part, Defendants' motion to dismiss. (Doc. # 46). The Magistrate Judge concluded that Defendants were entitled to immunity on Plaintiff's claim for damages against Defendants in Defendants' official capacities. However, the Magistrate Judge concluded that Defendants were not entitled to immunity on Plaintiff's claims for damages against Defendants in their individual capacities. (Doc. # 46). Neither party filed objections to the Report and Recommendation.
STANDARD OF REVIEW
The duties of the district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Where the parties object to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objections are filed, the district court need not review de novo the Report and Recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). A district court may always, "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); Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006); Or. Natural Desert Ass'n v. Rasmussen, 451 F. Supp. 2d. 1202, 1205 (D. Or. 2006).
DISCUSSION ORDER
Neither party objected to the Magistrate Judge's Report and Recommendation, and the Court has reviewed the Report and Recommendation in its entirety. The Court concludes that the Magistrate Judge correctly determined that Defendants are entitled to Eleventh Amendment immunity with respect to Plaintiff's claims for damages against Defendants in their official capacities, but that Defendants are not entitled to immunity with respect to Plaintiff's claims for damages against Defendants in their individual capacities. Construing Plaintiff's Second Amended Complaint liberally, as this Court must, it is evident that Plaintiff intended to assert claims against Defendants in both their individual and official capacities. See (Doc. # 13 at 2).
IT IS HEREBY ORDERED that the Report and Recommendation (Doc. # 46) is ADOPTED in its entirety. Defendants' motion to dismiss (Doc. # 25) is GRANTED as to Plaintiff's claims for damages against Defendants in their official capacities. Defendants' motion to dismiss (Doc. # 25) is DENIED as to Plaintiff's claims for damages against Defendants in their individual capacities.
IT IS SO ORDERED.