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Newberry v. Barreras

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 9, 2009

THEODORE E. NEWBERRY, PLAINTIFF,
v.
N. BARRERAS, M.D., ET AL., DEFENDANTS.

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

ORDER ADOPTING REPORT AND RECOMMENDATION; GRANTING WITHOUT PREJUDICE MOTION TO DISMISS [doc. #9]; and GRANTING LEAVE TO AMEND THE COMPLAINT

Plaintiff Theodore E. Newberry filed a pro se complaint under 42 U.S.C. § 1983 that alleged defendants violated his constitutional right under the Eighth Amendment to be free from cruel and unusual punishment for deliberately ignoring plaintiff's medical needs and pain. The matter was referred to United States Magistrate Judge Peter C. Lewis, for a Report and Recommendation ("Report"). See 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate judge issued a Report recommending the motion be granted and requiring objections, if any, to the Report to be filed no later than December 29, 2008. [doc. #17] To date, no objections have been filed.

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, 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) (applying Reyna-Tapia to habeas review).

Having reviewed the Report and no objections having been filed, defendants' motion to dismiss without prejudice is GRANTED. Plaintiff may file an amended complaint that complies with the issues raised in the Report. If plaintiff intends to prosecute this action, the amended complaint shall be filed and served on opposing counsel no later than February 6, 2009

IT IS SO ORDERED.

20090109

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