ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS' MOTION TO DISMISS

JOHN A. HOUSTON, District Judge.

BACKGROUND

Plaintiff, Michael Lee Rhudy, a state prisoner proceeding pro se, filed a complaint on December 12, 2016, pursuant to 42 U.S.C. section 1983. In his complaint, Plaintiff alleges Defendant, C/O Melendez, violated his Eighth Amendment right against cruel and unusual punishment by placing Plaintiff on the "brick diet" for nine days. Complaint at 3.

On August 22, 2017, Defendants Imperial County Jail and Melendez filed the pending motion to dismiss the complaint, arguing Plaintiff failed to exhaust his administrative remedies, the claim is barred by the statute of limitations, Plaintiff fails to sufficiently allege a violation of the Eighth Amendment, and Defendant is entitled to qualified immunity. Plaintiff filed an opposition to the motion on October 3, 2017, and Defendants filed a reply on October 16, 2017.

On February 8, 2018, the Honorable Bernard G. Skomal, United States Magistrate Judge, issued a report and recommendation ("Report") addressing the motion and recommending this Court grant Defendants' motion to dismiss and grant Plaintiff leave to file an amended complaint. Objections to the Report were due by February 27, 2018. Neither party filed objections.

After careful consideration of the parties' submissions and for the reasons set forth below, this Court ADOPTS the magistrate judge's Report and GRANTS Defendants' motions to dismiss.

DISCUSSION

I. Legal Standard

The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. section 636(b)(1). Under this statute, the court "shall make a de novo determination of those portions of the report. . .to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. The party objecting to the magistrate judge's findings and recommendation bears the responsibility of specifically setting forth which of the magistrate judge's findings the party contests. See Fed.R.Civ. P. 72(b). It is well-settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

II. Analysis

Applying the two part test presented in Foster v. Runnels, 554 F.3d 807 (9th Cir. 2009), Judge Skomal determined the allegations of the complaint failed to sufficiently allege a serious deprivation that Defendants were aware of and disregarded a serious deprivation to support a claim for violation of the Eighth Amendment prohibition against cruel and unusual punishment. Judge Skomal also determined Plaintiff failed to allege the dates when the event allegedly occurred, and, thereby, failed to provide Defendants fair notice to effectively defend themselves.

Judge Skomal found Defendants are not entitled to dismissal based on failure to exhaust administrative remedies and qualified immunity at this stage of the proceedings, but suggests they not be precluded from asserting these defenses in response to an amended pleading or on summary judgment.

Based upon Plaintiff's failure to allege a serious deprivation that Defendants were aware of and disregarded, and failure to identify the events specifically enough for Defendants to effectively defend themselves, Judge Skomal recommends the motion to dismiss be granted. Additionally, Judge Skomal recommends Plaintiff be granted leave to file an amended complaint.

This Court received no objections to the Report. The Court conducted a de novo review, independently reviewing the Report and all relevant papers submitted by both parties, and finds the Report provides a cogent analysis of the issues presented in the motion.

CONCLUSION AND ORDER

For the reasons set forth above, IT IS HEREBY ORDERED:

1. The findings and conclusions of the magistrate judge presented in the Report are ADOPTED in their entirety;

2. Defendants' motion to dismiss (Doc. No. 12) is GRANTED;

3. The complaint is DISMISSED without prejudice;

4. If Plaintiff wishes to file a First Amended Complaint that cures the deficiencies outlined by the magistrate judge in the Report, he may do so no later than March 21, 2018.