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Darnell Dukes v. K. Spence

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 15, 2011

DARNELL DUKES,
PLAINTIFF,
v.
K. SPENCE, 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 GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Darnell Dukes, a state prisoner proceeding pro se and in forma pauperis, filed this action under 42 U.S.C. § 1983 alleging Eighth Amendment violations for use of excessive force against numerous Defendants. The case was referred to United States Magistrate Judge William V. Gallo for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3.

Three of the seven Defendants moved for summary judgment with respect to Plaintiff's excessive force claims. The Magistrate Judge issued a Report and Recommendation, recommending the summary judgment motion be granted with respect to claims asserted against Defendants K. Spence, K. Smith and J. Ponce. Plaintiff filed no objections.

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 novo 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. Defendants' motion for summary judgment with respect to claims asserted against Defendants K. Spence, K. Smith and J. Ponce is GRANTED.

IT IS SO ORDERED.

COPY TO:

20110615

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