Himes v. Hadjadj

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RODERICK HIMES Case No.: 19cv2216-JAH (MSB)

12 Plaintiff, ORDER ADOPTING THE 13 v. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 14 FABRICE HADJADJ REGARDING DEFENDANT’S Defendant. 15 MOTION TO DISMISS [DOC NO. 14] 16 17 For the reasons set forth below, this Court ADOPTS the Report and 18 Recommendations [Doc. No. 14] (“Report”). Defendant’s Motion to Dismiss [Doc. No. 19 11] (“Motion”) is hereby GRANTED with leave to amend. 20 BACKGROUND 21 On November 21, 2019, Plaintiff Roderick Himes, a state prisoner proceeding pro 22 se and in forma pauperis (“Plaintiff”), filed a civil rights Complaint against Defendant 23 Fabrice Hadjadj, Jewish Chaplain at Richard J. Donovan Correctional Facility 24 (“Defendant”), alleging Defendant removed him from the inmate Kosher Diet Program 25 (“KDP”), violating his First Amendment right to free exercise his Jewish Religion. Plaintiff 26 additionally alleged, without establishing a separate cause of action, that Defendant denied 27 him due process under the Fourteenth Amendment when he failed to provide him with 28 documentation as to his removal from KDP or adequate opportunities to contest such 1 removal. See Doc. No. 1. 2 Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”) on 3 November 21, 2019, pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. On January 3, 2020, 4 the Court granted Plaintiff’s IFP motion and issued summons. See Doc. Nos. 6, 7. 5 On March 27, 2020, Defendant filed the instant motion to dismiss, contending that 6 Plaintiff does not, and cannot, state any cognizable claims because (1) Plaintiff’s 7 Complaint fails to state a claim against Chaplain Hadjadj, because Chaplain Hadjadj had 8 not engaged in any of the conduct that violated Plaintiff’s First and Fourteenth Amendment 9 rights; and (2) Chaplain Hadjadj is entitled to qualified immunity. See Doc. No. 8. 10 Plaintiff filed an opposition on April 22, 2020, where he coincidently agreed with 11 Defendant, that Defendant was not specifically involved in the actions alleged as 12 constitutional violations toward Plaintiff. See Doc. No. 11. Subsequently, Defendant filed 13 his reply brief on May 15, 2020, reiterating his request for dismissal. This Court Agrees. 14 On August 10, 2020 pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Michael 15 S. Berg, submitted a Report and Recommendation (“Report”) to this Court recommending 16 that Plaintiff’s Complaint be dismissed with leave to amend for failure to state cognizable 17 claims. See Doc. No. 14. Pursuant to Fed. R. Civ. P. 72(b)(2), objections to the Report were 18 due no later than August 24, 2020. No objections were timely filed. Accordingly, for the 19 reasons set forth below, this Court ADOPTS the Magistrate Judge Berg’s Report in its 20 entirety, and DISMISSES Plaintiff’s Complaint with leave to amend. 21 DISCUSSION 22 The district court’s role in reviewing a magistrate judge’s report and 23 recommendation is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 24 U.S.C. § 636(b)(1). When a party objects to the magistrate judge’s report and 25 recommendation, the district court “shall make a de novo determination of those portions of 26 the report . . . to which objection is made,” and may “accept, reject, or modify, in whole or in 27 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); 28 see also Fed. R. Civ. P. 72(b)(3). l When no objections are filed, the district court is not required to conduct a de novo 2 ||review of the magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 3 || F.3d 992, 1000 n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s 4 ||report and recommendation] is only required when an objection is made”); United States 5 Reyna—Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 6 || 636(b)(1)(c) “makes it clear that the district judge must review the magistrate judge’s 7 || findings and recommendations de novo if objection is made, but not otherwise”). This rule 8 law is well established within the Ninth Circuit and this district. See Hasan v. Cates, 9 ||No. 11-cv—1416, 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in 10 |/its entirety, and without review, a report and recommendation because neither party filed 11 || objections to the report despite having the opportunity to do so); accord Ziemann v. Cash, 12 11—cv—2496, 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. 13 || Poulos, No. 08—cv—1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.). 14 Here, the record reflects that no party filed objections to the Report. Thus, in the 15 absence of any objections, the Court ADOPTS the Report. For the reasons stated in the 16 || Report, which are incorporated herein by reference, Defendant’s motion to dismiss, [Doc. 17 ||No. 11], is GRANTED, and the Complaint is DISMISSED with leave to amend. The 18 || Clerk of Court shall enter judgment reflecting the foregoing. 19 IT IS SO ORDERED. 20 || DATED: March 5, 2021

22 3 OHN A. HOUSTON / United States District Judge 24 25 26 27 28