Gravesbey v. Byrd-Hunt

Opinion

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