1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DION SCOTT BUCKELEW, Case No.: 21cv810-LL-NLS
12 Plaintiff, ORDER OVERRULING 13 v. OBJECTIONS TO REPORT AND RECOMMENDATION 14 WILLIAM D. GORE; CAPTAIN
BUCHANAN; CAPTAIN HAYES, 15 [ECF No. 76] Defendants. 16
17 This matter is before the Court on Plaintiff Dion Scott Buckelew’s objections [ECF 18 No. 76] to the magistrate judge’s report and recommendation (“R&R”) [ECF No. 72], 19 which was adopted by the Court on July 10, 2023 [ECF No. 74]. Plaintiff requests that the 20 Court consider his objections as timely filed. ECF No. 76 at 1. Plaintiff’s objections are 21 dated on July 18, 2023 and were received by the Court on July 26, 2023. Id. Objections to 22 the R&R were due on July 7, 2023. ECF No. 72 at 18. Plaintiff’s objections are therefore 23 untimely. See Fed. R. Civ. P. 72(b). However, the Court GRANTS Plaintiff’s request to 24 consider his objections. For the reasons discussed below, Plaintiff’s objections to the R&R 25 are OVERRULED. ECF No. 76. Accordingly, the Court AFFIRMS its order adopting the 26 R&R. ECF No. 74. This case remains closed. 27
28 1 I. BACKGROUND 2 Plaintiff originally brought this action on April 23, 2021, bringing claims under the 3 Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. 4 § 2000cc et seq., and 42 U.S.C. § 1983. ECF No. 1. The Court dismissed Plaintiff’s initial 5 complaint for failure to state a claim, granting leave to amend. ECF No. 3. Plaintiff then 6 filed a first amended complaint (“FAC”) which was substantially similar to his initial 7 complaint. ECF No. 4. Ruling on Defendant William D. Gore’s motion to dismiss, which 8 was joined by Defendants Buchanan and Hays,1 the Court dismissed the FAC with further 9 leave to amend. ECF Nos. 35, 46. Plaintiff then filed a second amended complaint (“SAC”) 10 on October 5, 2022 [ECF No. 51], and Defendants filed motions to dismiss the SAC [ECF 11 Nos. 53 (Gore), 63 (Buchanan and Hays)]. The R&R was filed on June 16, 2023, and the 12 parties were given twenty-one days to file written objections to the R&R. ECF No. 72. No 13 objections were filed within that time, and the Court adopted the R&R without 14 modification on July 10, 2023. ECF No. 74. 15 II. LEGAL STANDARD 16 Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b) instruct 17 that a district judge must “make a de novo determination of those portions of the report or 18 specified proposed findings or recommendations to which objection is made.” 28 U.S.C. 19 § 636(b)(1)(C); Fed. R. Civ. P. 72(b). In the absence of timely objections, the Court “need 20 only satisfy itself that there is no clear error on the face of the record in order to accept the 21 recommendation.” Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment 22 (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)); United States v. 23 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 24 Parties “may serve and file specific written objections to the proposed findings and 25 recommendations” by a magistrate judge. Fed. R. Civ. P. 72(b)(2) (emphasis added). In the 26 27 1 Defendant Hays was erroneously sued as “Captain Hayes.” See ECF No. 67 at 1. 28 1 absence of such specificity, the Court treats a general objection to the entirety of a 2 magistrate judge’s R&R as a failure to object. Alcantara v. McEwen, No. 12-cv-401, 2013 3 U.S. Dist. LEXIS 116055, at *3-4 (S.D. Cal. Aug. 14, 2013) (collecting cases). 4 III. OBJECTIONS TO THE REPORT AND RECOMMENDATION 5 Plaintiff objects that the “Court was premature in adopting the R&R,” that Plaintiff 6 “never received Defendants’ Motions to Dismiss and Strike,” and that such circumstances 7 are “unlawful and against [sic] Rules of this honorable court.” ECF No. 76 at 1. He further 8 “respectfully request[s] [that] the R&R decision [be] reversed and for Defendants to 9 comply with rules of this court and the law.” Id. at 2. 10 Firstly, as explained above, Plaintiff’s objection to the R&R was due on July 7, 2023. 11 See ECF No. 72. The twenty-one-day objection period provided by the magistrate judge 12 was longer than the response period for objections provided by Rule 72 of the Federal 13 Rules of Civil Procedure. See Fed. R. Civ. P. 72(b). Seeing no objections filed as of July 14 10, 2023, the Court reviewed the R&R for clear error and adopted it in its entirety. ECF 15 No. 74. Because Plaintiff’s objections were not written until July 18, 2023, more than ten 16 days after they were due, and no Defendants filed any objections, the Court’s order 17 adopting the R&R was not premature. Accordingly, Plaintiff’s first objection is 18 OVERRULED. 19 Second, Plaintiff’s contention that he never received Defendants’ Motions to 20 Dismiss and Strike are controverted by his own opposition filed in response to Defendant 21 Gore’s motion to dismiss the SAC and strike portions of the SAC. ECF No. 58 (captioned 22 “Plaintiff’s Response to Defendants Notice of Motion and Gore’s Motion to Dissmiss[sic] 23 Second Amended Complaint and Strike and Sever Portions Thereof.”). Plaintiff’s 24 opposition refers to “Defendants citations in their response to Plaintiff’s Second Amended 25 Complaint” [id. at 1], and apparently responds to Defendant Gore’s substantive argument 26 that he may no longer be sued in his official capacity as Sheriff, requesting that the court 27 “not dismiss[sic] any of this complaint for any reason” [id. at 3]. Although Plaintiff did not 28 file a response to the motion to dismiss filed by Defendants Buchanan and Hays [ECF No. 1 he does not dispute Defendants’ proof of service of that motion [ECF No. 63-2] or 2 || argue that he did not receive any other orders or filings directed to him in this case, such 3 Defendants’ notice of lack of opposition to their motion to dismiss [ECF No. 64] or the 4 ||R&R itself [ECF No. 72]. Plaintiff also continued to engage in this case, while the motions 5 || to dismiss were pending, by filing supplemental motions. See ECF Nos. 65, 66. In light of 6 || the aforementioned, Plaintiff's second objection is OVERRULED. 7 Finally, the Court treats Plaintiff's request for the R&R to be reversed as a general 8 || objection. Neither of the objections discussed above address the substance of the findings 9 made by the magistrate judge, and the Court therefore finds that Plaintiff has not made an 10 || objection to any specific portion of the R&R. Accordingly, the Court treats this objection 11 |/as a failure to object, and finds that it need only satisfy itself that the R&R is not clearly 12 erroneous. See Alcantara, 2013 U.S. Dist. LEXIS 116055, at *2 (citing Fed. R. Civ. P.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DION SCOTT BUCKELEW, Case No.: 21cv810-LL-NLS
12 Plaintiff, ORDER OVERRULING 13 v. OBJECTIONS TO REPORT AND RECOMMENDATION 14 WILLIAM D. GORE; CAPTAIN
BUCHANAN; CAPTAIN HAYES, 15 [ECF No. 76] Defendants. 16
17 This matter is before the Court on Plaintiff Dion Scott Buckelew’s objections [ECF 18 No. 76] to the magistrate judge’s report and recommendation (“R&R”) [ECF No. 72], 19 which was adopted by the Court on July 10, 2023 [ECF No. 74]. Plaintiff requests that the 20 Court consider his objections as timely filed. ECF No. 76 at 1. Plaintiff’s objections are 21 dated on July 18, 2023 and were received by the Court on July 26, 2023. Id. Objections to 22 the R&R were due on July 7, 2023. ECF No. 72 at 18. Plaintiff’s objections are therefore 23 untimely. See Fed. R. Civ. P. 72(b). However, the Court GRANTS Plaintiff’s request to 24 consider his objections. For the reasons discussed below, Plaintiff’s objections to the R&R 25 are OVERRULED. ECF No. 76. Accordingly, the Court AFFIRMS its order adopting the 26 R&R. ECF No. 74. This case remains closed. 27
28 1 I. BACKGROUND 2 Plaintiff originally brought this action on April 23, 2021, bringing claims under the 3 Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. 4 § 2000cc et seq., and 42 U.S.C. § 1983. ECF No. 1. The Court dismissed Plaintiff’s initial 5 complaint for failure to state a claim, granting leave to amend. ECF No. 3. Plaintiff then 6 filed a first amended complaint (“FAC”) which was substantially similar to his initial 7 complaint. ECF No. 4. Ruling on Defendant William D. Gore’s motion to dismiss, which 8 was joined by Defendants Buchanan and Hays,1 the Court dismissed the FAC with further 9 leave to amend. ECF Nos. 35, 46. Plaintiff then filed a second amended complaint (“SAC”) 10 on October 5, 2022 [ECF No. 51], and Defendants filed motions to dismiss the SAC [ECF 11 Nos. 53 (Gore), 63 (Buchanan and Hays)]. The R&R was filed on June 16, 2023, and the 12 parties were given twenty-one days to file written objections to the R&R. ECF No. 72. No 13 objections were filed within that time, and the Court adopted the R&R without 14 modification on July 10, 2023. ECF No. 74. 15 II. LEGAL STANDARD 16 Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b) instruct 17 that a district judge must “make a de novo determination of those portions of the report or 18 specified proposed findings or recommendations to which objection is made.” 28 U.S.C. 19 § 636(b)(1)(C); Fed. R. Civ. P. 72(b). In the absence of timely objections, the Court “need 20 only satisfy itself that there is no clear error on the face of the record in order to accept the 21 recommendation.” Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment 22 (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)); United States v. 23 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 24 Parties “may serve and file specific written objections to the proposed findings and 25 recommendations” by a magistrate judge. Fed. R. Civ. P. 72(b)(2) (emphasis added). In the 26 27 1 Defendant Hays was erroneously sued as “Captain Hayes.” See ECF No. 67 at 1. 28 1 absence of such specificity, the Court treats a general objection to the entirety of a 2 magistrate judge’s R&R as a failure to object. Alcantara v. McEwen, No. 12-cv-401, 2013 3 U.S. Dist. LEXIS 116055, at *3-4 (S.D. Cal. Aug. 14, 2013) (collecting cases). 4 III. OBJECTIONS TO THE REPORT AND RECOMMENDATION 5 Plaintiff objects that the “Court was premature in adopting the R&R,” that Plaintiff 6 “never received Defendants’ Motions to Dismiss and Strike,” and that such circumstances 7 are “unlawful and against [sic] Rules of this honorable court.” ECF No. 76 at 1. He further 8 “respectfully request[s] [that] the R&R decision [be] reversed and for Defendants to 9 comply with rules of this court and the law.” Id. at 2. 10 Firstly, as explained above, Plaintiff’s objection to the R&R was due on July 7, 2023. 11 See ECF No. 72. The twenty-one-day objection period provided by the magistrate judge 12 was longer than the response period for objections provided by Rule 72 of the Federal 13 Rules of Civil Procedure. See Fed. R. Civ. P. 72(b). Seeing no objections filed as of July 14 10, 2023, the Court reviewed the R&R for clear error and adopted it in its entirety. ECF 15 No. 74. Because Plaintiff’s objections were not written until July 18, 2023, more than ten 16 days after they were due, and no Defendants filed any objections, the Court’s order 17 adopting the R&R was not premature. Accordingly, Plaintiff’s first objection is 18 OVERRULED. 19 Second, Plaintiff’s contention that he never received Defendants’ Motions to 20 Dismiss and Strike are controverted by his own opposition filed in response to Defendant 21 Gore’s motion to dismiss the SAC and strike portions of the SAC. ECF No. 58 (captioned 22 “Plaintiff’s Response to Defendants Notice of Motion and Gore’s Motion to Dissmiss[sic] 23 Second Amended Complaint and Strike and Sever Portions Thereof.”). Plaintiff’s 24 opposition refers to “Defendants citations in their response to Plaintiff’s Second Amended 25 Complaint” [id. at 1], and apparently responds to Defendant Gore’s substantive argument 26 that he may no longer be sued in his official capacity as Sheriff, requesting that the court 27 “not dismiss[sic] any of this complaint for any reason” [id. at 3]. Although Plaintiff did not 28 file a response to the motion to dismiss filed by Defendants Buchanan and Hays [ECF No. 1 he does not dispute Defendants’ proof of service of that motion [ECF No. 63-2] or 2 || argue that he did not receive any other orders or filings directed to him in this case, such 3 Defendants’ notice of lack of opposition to their motion to dismiss [ECF No. 64] or the 4 ||R&R itself [ECF No. 72]. Plaintiff also continued to engage in this case, while the motions 5 || to dismiss were pending, by filing supplemental motions. See ECF Nos. 65, 66. In light of 6 || the aforementioned, Plaintiff's second objection is OVERRULED. 7 Finally, the Court treats Plaintiff's request for the R&R to be reversed as a general 8 || objection. Neither of the objections discussed above address the substance of the findings 9 made by the magistrate judge, and the Court therefore finds that Plaintiff has not made an 10 || objection to any specific portion of the R&R. Accordingly, the Court treats this objection 11 |/as a failure to object, and finds that it need only satisfy itself that the R&R is not clearly 12 erroneous. See Alcantara, 2013 U.S. Dist. LEXIS 116055, at *2 (citing Fed. R. Civ. P. 72). 13 || Having reviewed the R&R for clear error and finding none, the Court adopted the R&R in 14 entirety by previous Order. ECF No. 74. 15 IV. CONCLUSION 16 Upon review of Plaintiff's untimely objections and having OVERRULED those 17 || objections, the Court AFFIRMS its prior order adopting the R&R. ECF No. 74. 18 This case shall remain closed. 19 IT IS SO ORDERED. 20 ||Dated: August 8, 2023 NO 21 DE | 22 Honorable Linda Lopez 33 United States District Judge 24 25 26 27 28