Newton v. Eatmon

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 SOUTHERN DISTRICT OF CALIFORNIA

9 THEODORE J. NEWTON, CASE NO. 21cv15-LAB (KSC)

10 Plaintiff, ORDER ADOPTING REPORT AND 11 vs. RECOMMENDATION [Dkt. 22]

12 OFFICER S. EATMON,

13 Defendant.

14 Theodore Newton, a state prison inmate proceeding pro se, brought this Section 15 1983 action alleging that he was assaulted by Defendant, Officer S. Eatmon. Eatmon moved 16 to dismiss the Complaint in part under Fed. R. Civ. P. 12(b)(6) on the ground that it includes 17 damages claims against Eatmon in his official capacity, claims that would violate the 18 Eleventh Amendment. (Dkt. 16). The Motion was referred to Magistrate Judge Crawford for 19 a Report and Recommendation pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72(b). 20 Currently before the Court is Magistrate Judge Crawford’s Report and Recommendation 21 (“R&R”), which recommends that Eatmon’s Motion to Dismiss be denied as moot and that 22 Eatmon be directed to respond to Newton’s First Amended Complaint within 30 days of the 23 Court’s order adopting the R&R. (Dkt. 22). No objection was filed prior to the December 6, 24 2021 deadline. For the reasons below, the Court ADOPTS IN FULL Judge Crawford’s R&R. 25 Section 636 and Civil Rule 72(b) govern review of a magistrate’s R&R on a dispositive 26 motion. They require de novo review of any objected-to portion of the R&R. 28 U.S.C. 27 § 636(b)(1); Fed. R. Civ. P. 72(b)(3). But they don’t require de novo review if the parties 28 don’t object. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 1 || To the contrary, parties acquiesce to an R&R by not raising a timely objection. See id. 2 || (“[Plarties [who fail to object] . . . accept [the R&R] as correct”). 3 The Court has reviewed the R&R and the relevant filings. The R&R’s reasoning 4 || appears sound and its disposition correct. The Court ADOPTS the R&R IN FULL. The 5 || Motion to Dismiss the Complaint is DENIED AS MOOT because the Complaint is no longer 6 || the operative pleading in this action. Eatmon must respond to the First Amended Complaint 7 || on or before March 9, 2022. 8 9 IT IS SO ORDERED. 10 || Dated: February 7, 2022 (a f A □□ Wy 11 HON. LARRY ALAN BURNS 40 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28