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Mendiola v. Sullivan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 29, 2007

MICHAEL MENDIOLA, PETITIONER,
v.
W.J. SULLIVAN, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. Nos. 18,19.)

On January 19, 2007 Petitioner Michael Mendiola ("Petitioner"), a state prisoner proceeding pro se, filed a habeas corpus petition seeking relief under 28 U.S.C. § 2254. The original habeas petition argued 5 grounds for relief. (Doc. No. 1.) On April 26, 2007 Petitioner filed a First Amended Complaint ("FAC"), which only argued a single ground for relief. (Doc. No. 10.) On May 8, 2007 Magistrate Judge Jan Adler issued a briefing schedule establishing a June 18, 2007 deadline for Respondent to file a motion to dismiss. (Doc. No. 14.) On June 20, 2007 Respondent successfully moved to extend the deadline to July 18, 2007. (Doc. No. 17.) On July 5, 2007 Respondent finally filed their motion to dismiss, roughly ten weeks after the Petitioner filed their FAC.

On September 24, 2007 Magistrate Judge Adler issued his Report and Recommendation ("Report") recommending that Respondent's motion to dismiss be denied. (Doc. No. 19.) The Report also ordered that any objections were to be filed by October 12, 2007, and any reply filed by October 26, 2007. To date, no objections have been filed, nor has there been a request for additional time in which to file an objection.

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 28 U.S.C. 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise")(emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding that where no objections were filed, the District Court had no obligation to review the magistrate judge's Report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, de novo review of a R & R is only required when an objection is made to the R & R.")(emphasis added)(citing RenyaTapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because neither party filed objections to the Report despite the opportunity to do so, "accordingly, the Court will adopt the Report and Recommendation in its entirety."); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

The Court therefore accepts Judge Adler's recommendation, and ADOPTS the Report in its entirety. For the reasons stated in the Report, which is incorporated herein by reference, the Court DENIES Respondent's motion to dismiss [Doc. No. 18].*fn1

IT IS SO ORDERED.


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