United States District Court, S.D. California
October 20, 2005.
FLOYD NELSON, Plaintiff,
G.J. GIURBINO, et al., Defendants.
The opinion of the court was delivered by: JAMES LORENZ, District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION; GRANTING WITHOUT
PREJUDICE MOTION TO DISMISS [doc. #18]; and GRANTING LEAVE TO
Plaintiff Floyd H. Nelson, a California state proceeding pro
se, filed this action under 42 U.S.C. § 1983. Plaintiff alleges
his First Amendment rights under the United States Constitution
were violated by denying him access to internet generated legal
materials and by thereafter denying his appeals regarding the
alleged constitutional violations while he was incarcerated at
Pelican Bay State Prison. The Honorable Anthony J. Battaglis
issued a Report and Recommendation ("Report") in accordance with
28 U.S.C. § 636(b)(1) recommending defendants' motion to dismiss
the complaint be granted. Neither party filed objections to the
Report notwithstanding having the opportunity to do so.
The district court's role in reviewing a Magistrate Judge's
report and recommendation is set forth in 28 U.S.C. § 636(b)(1).
Under this statute, the district court "shall make a de novo
determination of those portions of the report . . . to which
objection is made," and "may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge." Id. Under this statute, "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.) (en banc), cert.
denied, 124 S. Ct. 238 (2003).
As noted above, neither party has objected to the Report.
Accordingly, the Court will adopt the Report and Recommendation
in its entirety.
Based on the foregoing, IT IS ORDERED granting without
prejudice defendants' motion to dismiss the complaint. IT IS
FURTHER ORDERED granting plaintiff leave to file an amended
complaint in accordance with this Order and the Report. IT IS
FURTHER ORDERED that if plaintiff desires to file an amended
complaint, he shall do so within 30 days of the filing of this
Order. Failure to file an amended complaint within the time
provided shall result in dismissal of this action and the closing
of the case without further notice to the parties.
IT IS SO ORDERED.
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