United States District Court, S.D. California
December 13, 2005.
GARY MAURICE TOWNES, Plaintiff,
E. PAULE, (sued erroneously as "Polley"), et al., Defendants.
The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND
DISMISSING COMPLAINT WITHOUT PREJUDICE
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)).
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).
CONCLUSION AND ORDER
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
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