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Thomas v. Small

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 8, 2010

DANIEL J. THOMAS, PETITIONER,
v.
LARRY SMALL, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION, (2) DISMISSING THE PETITION, AND (3) DENYING PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING (Doc. No. 17)

Petitioner Daniel J. Thomas brings the present petition for a writ of habeas corpus, alleging Respondent's disciplinary proceedings violated his due process rights. (Doc. No. 1.) Presently before the Court is the petition, Respondent's motion to dismiss, (Doc. No. 17), Petitioner's opposition, (Doc. No. 21), and a report and recommendation (R&R) from Magistrate Judge Barbara L. Major advising this Court to grant Respondent's motion to dismiss, deny the petition, and deny Petitioner's request for an evidentiary hearing. (Doc. No. 22.)

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of a district court in connection with a magistrate judge's report and recommendation. "The district court must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

In this case, Petitioner has failed to timely file objections to Judge Major's R&R. Having reviewed the R&R, the Court finds that it is thorough, well reasoned, and contains no clear error. Therefore, the Court adopts the R&R in full. The Court hereby: (1) ADOPTS Magistrate Judge Major's Report and Recommendation, (2) GRANTS Respondent's motion to dismiss the petition for habeas corpus and denying the petition, and (3) denying Petitioner's request for an evidentiary hearing. . The Clerk shall close the file.

IT IS SO ORDERED.

20100208

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