Joseph v. Department of Corrections et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SERENA MICHELLE JOSEPH,
Plaintiff,
v.
DEPARTMENT OF CORRECTIONS,
et al.,
Defendants.
Case No. 3:20-cv-00294-SLG
ORDER RE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Before the Court at Docket 33 is Defendants’ Motion to Dismiss for failure to
state a claim\. 	At Dockets 40 and 41 Plaintiff Serena Joseph filed responses in
opposition to the Motion, and at Docket 45 Defendants filed a reply in response to
Plaintiff’s oppositions. This matter was referred to the Honorable Magistrate Judge
Kyle F. Reardon. 	At Docket 46 Judge Reardon issued his Proposed Findings of
Fact and Recommendation for the Disposition of Motion to Dismiss for Failure to
State a Claim in which he recommended granting in part and denying 	in part
Defendants’ Motion to Dismiss.
No objections to the Proposed Findings of Fact and Recommendation for
the Disposition to Dismiss for Failure to State a Claim were filed by either party.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
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part, the findings or recommendations made by the magistrate judge.”1 A court is
to “make a de novo determination of those portions of the magistrate judge’s report
or specified proposed findings or recommendations to which objection is made.” 2
However, § 636(b)(1) does not “require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.” 3
The 	Court 	has 	reviewed 	the 	Proposed 	Findings 	of 	Fact 	and
Recommendation for the Disposition of Motion to Dismiss for Failure to State a
Claim and agrees with that analysis. Accordingly, the Court adopts the Report and
Recommendation in its entirety, and IT IS ORDERED as follows:
1. 	Plaintiff’s allegations against all Defendants in their official capacity as
well as Plaintiff’s Count Two Fourteenth Amendment claim, are DISMISSED
WITHOUT PREJUDICE.
2. 	Plaintiff’s Count Three failure to protect claim is DISMISSED WITH
PREJUDICE.
3. 	Defendant’s motion to dismiss Count One, Plaintiff’s First Amendment
retaliation claim, is DENIED.
1 28 U.S.C. § 636(b)(1).
2 Id.
3 Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
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Order re Moton to Dismiss for Failure to State a Claim
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IT IS FURTHER ORDERED that within 30 days of the date of this order,
Plaintiff shall file either (1) a notice that she intends to proceed solely on Count
One, the First Amendment retaliation claim; or (2) an Amended Complaint that
attempts to replead the allegations against Defendants in their official capacity
and/or the Fourteenth Amendment claim to correct the deficiencies identified in
this order.
DATED this 31st day of August, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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