Gadsden v. Gehris

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD EARL GADSDEN, Case No.: 3:20-cv-02258-WQH-DEB

12 Plaintiff, ORDER 13 v. 14 JOHN GEHRIS, Deputy Sheriff; and MICHAEL MCGRATH, 15 Deputy Sheriff, 16 Defendants. 17 HAYES, Judge: 18 The matters before the Court are the Motion to Dismiss filed by Defendant John 19 Gehris (ECF No. 4) and the Report and Recommendation issued by the Magistrate Judge 20 (ECF No. 23). 21 The duties of the district court in connection with a report and recommendation of a 22 magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 23 636(b). The district judge must “make a de novo determination of those portions of the 24 report . . . to which objection is made” and “may accept, reject, or modify, in whole or in 25 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). 26 The district court need not review de novo those portions of a Report and Recommendation 27 to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 28 1 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“Neither the 2 || Constitution nor the [Federal Magistrates Act] requires a district judge to review, de novo, 3 || findings and recommendations that the parties themselves accept as correct.”’). 4 On August 16, 2021, Plaintiff filed an Objection. (ECF No. 24). Plaintiff contends 5 the Report and Recommendation identifies a lack of plausibility of Plaintiffs First 6 || Amendment Retaliation claim based on evidentiary judgments about disputed factual 7 questions. Plaintiff contends that the Report and Recommendation fails to acknowledge 8 ||that Defendant Gehris’s claims about the Incident Report are inaccurate. On August 23, 9 ||2021, Defendant Gehris filed a Reply. (ECF No. 25). Defendant Gehris contends that the 10 || allegations in the Complaint are insufficient to state a claim for First Amendment 11 |/retaliation and are contradicted by documents attached to the Complaint. Defendant Gehris 12 contends that the allegations in Plaintiff's Objection are insufficient to survive a motion to 13 ||dismiss. The Court has reviewed the Report and Recommendation, the record, and the 14 || submissions of the parties. 15 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 23) is 16 |} ADOPTED in its entirety. The Motion to Dismiss filed by Defendant John Gehris (ECF 17 ||No. 4) is GRANTED. Plaintiff's Complaint is DISMISSED without prejudice. Any 18 || motion for leave to file an amended pleading must be filed within 30 days of this Order. 19 |} Dated: September 2, 2021 Nitta Ze. A a 20 Hon, William Q. Hayes 71 United States District Court 22 23 24 25 26 27 28