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Robert Douglas v. Michael Smelosky

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 23, 2011

ROBERT DOUGLAS,
PLAINTIFF,
v.
MICHAEL SMELOSKY, WARDEN; ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF JUDGE UNITED STATES MAGISTRATE [Doc. No. 14] GRANTING DEFENDANTS' MOTION TO DISMISS [Doc. No. 9]

Plaintiff Robert Douglas, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to United States Magistrate Judge Bernard G. Skomal pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. On November 30, 2010, Defendants Smelosky and Valenzuela filed a motion to dismiss Plaintiff's complaint. [Doc. No. 9.] Plaintiff filed an opposition to Defendants' motion on January 27, 2011. [Doc. No. 12.] On June 17, 2011, Judge Skomal filed a well-reasoned and thorough Report containing findings and conclusions, upon which he bases his recommendation that the Court grant Defendants' motion to dismiss. [Doc. No. 14.] On July 5, 2011, Plaintiff moved to extend the time to file objections to the Report. [Doc. No. 16.] Judge Skomal granted Plaintiff's request, and extended the deadline to file objections until August 15, 2011. [Doc. No. 17.] No objections were filed.

Where, as here, the case has been referred to the magistrate judge pursuant to 28 U.S.C. § 636, a district judge "may accept, reject, or modify the recommended disposition." Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "[T]he 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); see also Fed. R. Civ. P. 72(b). "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). "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, a district court is entitled to adopt a magistrate judge's report and recommendation based on the lack of objections. Nonetheless, the Court has conducted a de novo review and agrees Defendants' motion to dismiss should be granted.

CONCLUSION

Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds Judge Skomal's Report and Recommendation to be supported by the record and based on a proper analysis. Accordingly, the Court ADOPTS the Report and Recommendation in its entirety and GRANTS Defendants' Motion to Dismiss. IT IS FURTHER ORDERED:

(i) Plaintiff's claim for relief against Defendant Smelosky is DISMISSED WITHOUT PREJUDICE, and with leave to amend;

(ii) Plaintiff's claims for damages against all Defendants in their official capacities are DISMISSED WITH PREJUDICE, and without leave to amend.

(iii) If Plaintiff desires to amend his claim against Defendant Smelosky to remedy the deficiencies identified in the Report, he must file an amended complaint within thirty (30) days. If Plaintiff does not file an amended complaint within the time permitted, the only claim that will proceed in this action is his claim against Defendant Valenzuela in his individual capacity.*fn1

IT IS SO ORDERED.


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