Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

NELSON v. GIURBINO

United States District Court, S.D. California


October 20, 2005.

FLOYD NELSON, Plaintiff,
v.
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 AMEND
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.

20051020

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.