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United States District Court, S.D. California

December 13, 2005.

E. PAULE, (sued erroneously as "Polley"), et al., Defendants.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

Plaintiff, a state prisoner proceeding pro se, filed a complaint, pursuant to 42 U.S.C. § 1983, alleging defendants violated his constitutional rights. In lieu of an answer, defendants Brunner, Castillo and Paule (collectively "defendants") filed a motion to dismiss the complaint on the grounds that plaintiff failed to comply with the exhaust requirement set forth by the Prison Litigation Reform Act ("PLRA"). Pursuant to 28 U.S.C. § 636(b)(1), the Honorable Anthony J. Battaglia, United States Magistrate Judge, submitted a report and recommendation ("report") to this Court recommending defendants' motion be granted. Objections to the report were due by September 30, 2005, but neither party filed objections. After careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court ADOPTS the magistrate judge's report in its entirety and GRANTS defendants' motion in its entirety. BACKGROUND

The instant complaint, filed on February 7, 2005, alleges that, on January 6, 2004, defendant Paule used excessive force upon plaintiff by pushing and kicking him while handcuffed causing physical injuries. The complaint further alleges defendants Brunner and Castillo did nothing to stop defendant Paule's attacks on plaintiff.

  Defendants filed the instant motion to dismiss the complaint on June 21, 2005. Plaintiff filed an opposition (erroneously labeled "Traverse") to the motion on July 7, 2005. Defendants filed a reply to plaintiff's opposition on August 17, 2005. The magistrate judge's report was filed on September 6, 2005. No objections were filed by any party.


  1. Legal Standard

  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. When no objections are filed, the Court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

  2. Analysis

  The Court received no objections to the report and no request for an extension of time in which to file any objections. As such, the Court assumes the correctness of the magistrate judge's factual findings and adopts them in full. The Court has conducted a de novo review, independently reviewing the report and all relevant papers submitted by both parties, and finds that the report provides a cogent analysis of the issues presented in the motion. Specifically, this Court agrees with the magistrate judge's conclusion that plaintiff failed to exhaust his administrative remedies prior to filing the instant complaint and thus finds the complaint must be dismissed without prejudice. See Booth v. Churner, 532 U.S. 731, 741 (2001).


  For the reasons set forth above, IT IS HEREBY ORDERED that:

1. The findings and conclusions of the magistrate judge presented in the report and recommendation are ADOPTED in their entirety; and
2. The instant complaint is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.

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