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Duran v. Eatmon

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 30, 2008

IVAN DURAN, PLAINTIFF,
v.
SHAWN D. EATMON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT WITHOUT PREJUDICE

Plaintiff Ivan Duran, a state prisoner proceeding pro se, filed a complaint for violation of his civil rights pursuant to 42 U.S.C. § 1983 and for violation of the Gender Motivated Violence Act ("GMVA"). The case was referred to United States Magistrate Judge Cathy Ann Bencivengo for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. On July 24, 2007, the Magistrate Judge issued a Report and Recommendation, recommending the complaint be dismissed for failure to exhaust administrative remedies without prejudice and without leave to amend.*fn1 Plaintiff did not file objections to the Report and Recommendation.

A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute 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." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003).

In the absence of any objections, the court ADOPTS the Report and Recommendation. The complaint is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.

IT IS SO ORDERED.


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