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Camargo v. Rotner

United States District Court, Ninth Circuit

July 1, 2013

PETE N. CAMARGO, Plaintiff,
v.
JESSIE ROTNER, et al., Defendants.

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION

DANA M. SABRAW, District Judge.

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.

On June 26, 2012, the motion to dismiss filed by the Brawley Police Department ("Brawley") was granted. Plaintiff was granted leave to file an amended complaint no later than August 10, 2012 and allege Brawley's policies and customs which caused the alleged constitutional violation, as required by Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). (Docket no. 44.) As Plaintiff did not file an amended complaint, the claims asserted against Brawley were dismissed with prejudice on November 9, 2012. (Docket no. 56.) As to the claims asserted against the remaining two Defendants, the Magistrate Judge set an early neutral evaluation conference. (Docket no. 57.) Although Plaintiff was aware of the conference, he did not appear. ( See Docket no. 59.) The Magistrate Judge issued an order to show cause why sanctions should not be imposed and the case dismissed for failure to prosecute the case for the preceding eight months and failure to appear at the early neutral evaluation conference. ( Id. ) Plaintiff did not file a written response and did not appear at the order to show cause hearing. On May 7, 2013, the Magistrate Judge issued a report and recommendation recommending to dismiss the case for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 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 any objections, the Report and Recommendation is ADOPTED. Plaintiff's claims against Defendants Jesse Rotner and Torray Scales are DISMISSED WITHOUT PREJUDICE for failure to prosecute.

IT IS SO ORDERED.


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