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Jose Miguel Rodriguez v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 24, 2011

JOSE MIGUEL RODRIGUEZ,
PLAINTIFF,
v.
MATTHEW CATE,
DEFENDANTS.

The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER OF DISMISSAL

On December 22, 2010, Rodriguez filed his Petition for Write of Habeas Corpus under 28 U.S.C. § 2254. (Doc. No. 1.) This matter was referred to Magistrate Judge Ruben Brooks for report and recommendation pursuant to 28 U.S.C. § 636. On February 22, 2011, Defendant Matthew Cate filed a Motion to Dismiss Rodriguez's Petition. (Doc. No. 13.) which Rodriguez opposed (Doc. No. 18.). Judge Brooks issued his report and recommendation (the "R & R"), recommending that the Defendant's motion to dismiss be granted and Rodriguez's petition be dismissed. The R & R also permitted the parties to file objections to the R & R no later than August 12, 2011. Neither party has filed objections.

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."

28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R & R to which specific written objection is made. United States v. Reyna--Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "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." Id. When no objections are filed, the Court need not review de novo the Report and Recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005).

The Court has reviewed the R & R, finds it to be correct, and ADOPTS it. Defendant's unop-posed motion to dismiss is GRANTED. This action is DISMISSED WITH PREJUDICE for failure to state a claim.

IT IS SO ORDERED.

20110824

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