UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 25, 2007
ROBERT MITCHELL, PLAINTIFF,
BRANHAMWD*FN1 AND GUTHRIE, DEFENDANTS.
The opinion of the court was delivered by: Hayes, Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the court is the Report and Recommendation of Magistrate Judge William McCurine, Jr. recommending that the court Grant in part and Deny in part Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. (Doc. # 41). Specifically, the Magistrate Judge recommends Granting the Motion to Dismiss with respect to Plaintiff's equal protection claim, and Denying the Motion to Dismiss with respect to Plaintiff's claims for retaliation and negligence. The Report and Recommendation also recommends denying Defendants' motion for qualified immunity. Neither party filed an objection to the Report and Recommendation.
STANDARD OF REVIEW
When reviewing a magistrate judge's Report and Recommendation, a district court judge, "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006). Where the parties object to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C.A. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). However, after United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc), a district court is not obligated to review de novo a Report and Recommendation to which neither party objects.
In Thomas v. Arn, the United States Supreme Court held that a circuit court of appeal may establish rules regarding a district court's review of a magistrate judge's Report and Recommendation to which neither party has objected. 474 U.S. at 152. At the time of Thomas, the First, Second, Fourth, Fifth and Sixth Circuit Courts of Appeal had rules which obviated de novo review and waived the appellate rights of parties who did not object to a magistrate judge's Report and Recommendation. Thomas, 474 U.S. at 147 n. 4. As of 1985, however, the Ninth Circuit did not have such a rule. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983) ("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."). However, in Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003), the Court of Appeal for the Ninth Circuit cited the purposes of the Federal Magistrates Act, and in particular the importance of conserving time and judicial resources, and held that a district judge is required to perform de novo review of a Report and Recommendation's factual and legal conclusions only when a party objects to the Report and Recommendation. Reyna-Tapia, 328 F.3d at 1121; see also Wang v. Masitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005). Ninth Circuit District Courts have since ruled that a district court may adopt a magistrate judge's Report and Recommendation without review when neither party objects to a Report and Recommendation. See Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) ("[N]o review is required of a magistrate judge's report and recommendation unless objections are filed."); Or. Natural Desert Assoc. v. Rasmussen, 451 F. Supp. 2d 1202, 1204 (D. Or. 2006) ("[T]he court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the [Report and Recommendation] to which no objections are addressed."); Mares v. Schriro, No. CV 05 946 PHX JAT GEE, 2006 WL 898164, at *1 (D. Ariz. Apr. 6, 2006) ("[C]onsistent with Reyna-Tapia and Schmidt, this Court has not conducted any review because no objections were filed."); U.S. v. Depaz-Ortiz, No. 2:05-CR-391-BES-RJJ, 2006 WL 763660, at *1 (D. Nev. March 20, 2006) (accepting the magistrate judge's Report and Recommendation without review because no objections were filed). While a district court is relieved of its obligation to review de novo a Report and Recommendation to which neither party has objected, a district court may nevertheless, "accept, reject, or modify" the findings of a magistrate judge. Or. Natural Desert Association, 451 F. Supp. 2d. at 1205.
CONCLUSION & ORDER
Neither party objected to the Magistrate Judge's Report and Recommendation in this case. Accordingly, and after reviewing the Report and Recommendation in its entirety, the Court adopts the Report and Recommendation.
IT IS HEREBY ORDERED that the Report and Recommendation is adopted in its entirety and Defendants' Motion to Dismiss Plaintiff's Equal Protection claim is granted, Defendants' Motion to Dismiss Plaintiff's retaliation and negligence claims is denied, and Defendants' motion for qualified immunity is denied.
IT IS SO ORDERED.
WILLIAM Q. HAYES United States District Judge