Gravesbey v. Byrd-Hunt

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RODNEY ALEXANDER GRAVESBY Case No.: 19cv372-CAB-RBM CDCR#E-20555 12 ORDER: (1) ADOPTING REPORT Plaintiff, 13 AND RECOMMENDATION [Doc. 14 OFFICER TOMICA BYRD-HUNT; C/O No. 29]; (2) DENYING WITHOUT PREJUDICE MOTION TO DISMISS 15 NAVARRO; OFFICER P. COVELLO, COUNT 3 OF COMPLAINT [12]; 16 Defendants. 17 18 On June 27, 2019, Defendant Byrd-Hunt filed a motion to dismiss Count 3 of the 19 original complaint. [Doc. No. 12.] On September 23, 2019, Magistrate Judge Ruth 20 Bermudez Montenego prepared a Report and Recommendation (“Report”) 21 recommending that the motion to dismiss Count 3 of the initial complaint be denied 22 without prejudice. [Doc. No. 29.] The Report also ordered that any objections were to be 23 filed by October 7, 2019. [Report at 8.] To date, no objection has been filed, nor have 24 there been any requests for an extension of time in which to file an objection. 25 A district court’s duties concerning a magistrate judge’s report and 26 recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the 27 Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are 28 filed, the district court is not required to review the magistrate judge’s report and 1 ||recommendation. The Court reviews de novo those portions of the Report and 2 || Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may 3 || ““accept, reject, or modify, in whole or in part, the findings or recommendations made by 4 || the magistrate judge.” Jd. However, “[t]he statute makes it clear that the district judge 5 review the magistrate judge's findings and recommendations de novo if objection is 6 || made, but not otherwise.” United States v. Reyna—Tapia, 328 F.3d 1114, 1121 (9th 7 || Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute 8 requires a district judge to review, de novo, findings and recommendations that the 9 || parties themselves accept as correct.” Jd. In the absence of timely objection, the Court 10 || “need only satisfy itself that there is no clear error on the face of the record in order to 11 || accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing 12 || Campbel v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 13 Here, neither party has timely filed objections to the Report. Having reviewed it, 14 || the Court finds that it is thorough, well-reasoned, and contains no clear error. 15 || Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Montenegro’s Report and 16 || Recommendation [Doc. No. 29]; and (2) DENIES without prejudice Defendant’s motion 17 || to dismiss Count 3 of the initial complaint [Doc. No. 12]. 18 PLAINTIFF IS REMINDED that Magistrate Judge Montenegro has ordered him 19 || to file either a Second Amended Complaint or an opposition to Defendant Byrd-Hunt’s 20 || Motion to Dismiss the First Amended Complaint by November 7, 2019. [See Doc. No. 21 at 9.] 22 IT IS SO ORDERED. 23 ||Dated: November 4, 2019 € ZL 24 Hon. Cathy Ann Bencivengo 25 United States District Judge 26 27 28