UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 12, 2012
PETE N. CAMARGO,
JESSIE ROTNER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Pete N. Camargo, a state prisoner proceeding pro se, filed an action pursuant to 42 U.S.C. Section 1983 alleging violation of his constitutional rights. He claims two Brawley Police Department officers used excessive force when they arrested him. The case was referred to United States Magistrate Judge Peter C. Lewis for a report and recommendation in accordance with 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.3.
Defendants Torray Scales and Jesse Rotner filed a motion pursuant to Federal Rule of Civil Procedure 41(b) arguing dismissal for failure to timely serve, or in the alternative, pursuant to Rule 12(b)(5), arguing service of summons should be quashed for failure to properly serve. Plaintiff did not file an opposition. The Magistrate Judge issued a Report and Recommendation, recommending to deny Defendants' motion to dismiss, grant motion to quash service of process, and provide additional time for service. Plaintiff has not filed any objections.
A district judge "may accept, reject, or modify the recommended disposition" 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). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not require review by the district court under a lesser standard. 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 objections, the court ADOPTS the Report and Recommendation. Accordingly, it is ORDERED as follows:
1. Defendants' motion to dismiss under Rule 41(b) is DENIED and their motion to under Rule 12(b)(5) to quash service of process is GRANTED.
2. The United States Marshals Service shall comply with the provisions of the Report and Recommendation regarding service of process.
IT IS SO ORDERED.
cc: United States Marshals Service
© 1992-2012 VersusLaw Inc.