Yablonsky v. California Department of Correction & Rehabilitation

Opinion

John Henry YABLONSKY Case No.: 18cv1122-CAB-AGS

Plaintiff, ORDER: (1) ADOPTING REPORT v. AND RECOMMENDATION [Doc. No. 30]; GRANTING IN PART AND DENYING IN PART MOTION TO CORRECTION AND DISMISS [Doc. No. 17]; and REHABILITATION, GRANTING MOTION TO AMEND Defendants. THE COMPLAINT [Doc. No. 29]

On November 16, 2018, Defendants D. Powell, G. Martinez, J. Robles, D. McGuire, R. Blahnik, and C. Tiscarnia (“Defendants”) filed a motion to dismiss the complaint for failure to state a claim. [Doc. No. 17.] On December 27, 2018, Plaintiff John Henry Yablonsky (“Plaintiff”) filed an opposition. [Doc. No. 21.] On February 19, 2019, Defendants filed a reply. [Doc. No. 22.] On February 28, 2019, Plaintiff filed a sur-reply. [Doc. No. 23.] While the motion to dismiss was under submission, on August 12, 2019, Plaintiff filed a motion to amend the complaint. [Doc. No. 29.] On August 21, 2019, Magistrate Judge Andrew G. Schopler prepared a Report and Recommendation (“Report”) recommending that the motion to dismiss be granted in part and denied in part, and the motion to amend the complaint be granted. [Doc. No. 30.] The Report also ordered that any objections were to be filed by September 4, 2019. [Report at 9.] 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.” Id. However, “[t]he statute makes it clear that the district judge must 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.” Id. 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 Schopler’s Report and Recommendation; (2) GRANTS IN PART AND DENIES IN PART the motion to dismiss as follows: a. The denied-access-to-courts claim is DISMISSED, with leave to amend; b. The federal-criminal-law claim is DISMISSED WITH PREJUDICE; c. The 42 U.S.C. §$1985(2) conspiracy claim is DISMISSED, with leave to amend; (3) Plaintiff's motion to amend his complaint to add another cause of action is GRANTED; (4) Plaintiff shall file any Amended Complaint no later than October 2, 2019. Plaintiff's Amended Complaint must be complete in itself without reference to his original pleading. Defendants not named and any claims not re-alleged in the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. }2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered waived if not repled.”) Dated: September 10, 2019 € Hon. Cathy Ann Bencivengo United States District Judge