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Rinaldi v. Poulos

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 3, 2009

JOSEPH RINALDI, PETITIONER,
v.
M. E. POULOS ET AL., RESPONDENTS.

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

ORDER (1) ADOPTING REPORT AND RECOMMENDATION; AND (2) DENYING RESPONDENTS' MOTION TO DISMISS

Petitioner Joseph Rinaldi, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Louisa S. Porter for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). Respondents filed a motion to dismiss for failure to exhaust administrative remedies. Petitioner opposed the motion. On February 11, 2009 the Magistrate Judge issued a Report and Recommendation, recommending to deny Respondents' motion. Respondents have not filed any objections.

A district judge "may accept, reject, or modify the recommended disposition" 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). When no objections are filed, the de novo review is waived.

Section 636(b)(1) does not require review by the district court under a lesser standard. Thomas, 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) (applying Reyna-Tapia to habeas review).

In the absence of objections, the court ADOPTS the Report and Recommendation. For the reasons stated in the Report and Recommendation, Respondents' motion to dismiss is DENIED.

IT IS SO ORDERED.

20090403

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