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Jose A Borja v. F. Gonzalez; J. Gonzalez; M.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 1, 2011

JOSE A BORJA,
PLAINTIFF,
v.
F. GONZALEZ; J. GONZALEZ; M. ALVAREZ; C. NEAL; DELEAT, DEFENDANTS.

The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge

CDCR #T-54311,

ORDER ADOPTING REPORT AND RECOMMENDATION

Defendants filed a motion to dismiss Plaintiff Jose Borja's Fourteenth Amendment Equal Protection claim on February 24, 2011. (Dkt. No. 23.) After two extensions of time to file an opposition, Plaintiff filed an Opposition on May 12, 2011. (Dkt. No. 29.) On May 17, 2011, the Honorable Magistrate Judge William McCurine, Jr. issued a Report and Recommendation, recommending that the Court grant Defendants' motion to dismiss. (Dkt. No. 30.) Any objections to the Report and Recommendation were due June 8, 2011. (Id.) No objections have been filed. For the reasons stated below, the Court ADOPTS the well-reasoned Report and Recommendation of the Magistrate Judge and GRANTS Defendants' motion to dismiss.

A district judge "may accept, reject, or modify the recommended disposition" of a Magistrate Judge on a dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. §636(b)(1). "[T]he district judge must determinede novo any part of the [report and recommendation] that has been properly objected to." FED. R. CIV. P. 72(b)(3). However, "[t]he 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 original), cert denied, 540 U.S. 900 (2003); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121. Accordingly, the Court may grant Defendants' motion to dismiss on this basis alone.

The Court has, however, reviewed the matter de novo and agrees that the motion to dismiss should be granted because Plaintiff has failed to state a claim for denial of equal protection. He fails to allege facts demonstrating he is a member of a protected class or that his membership in that class led to his treatment.

In the absence of any objections and after a de novo review, the Court fully ADOPTS Judge McCurine's Report and DISMISSES Plaintiff's Fourteenth Amendment Equal Protection Claim.

20110701

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