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Torbert v. County of San Diego

United States District Court, Ninth Circuit

August 6, 2013

JAVON LAMAR TORBERT, CDCR #P-96193, Plaintiff,
v.
COUNTY OF SAN DIEGO, et al., Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

DANA M. SABRAW, District Judge.

Plaintiff Javon Lamar Torbert, a state prisoner proceeding pro se, filed a complaint under 42 U.S.C. Section 1983 alleging use of excessive force and deliberate indifference to a serious medical need. The action was referred to United States Magistrate William McCurine, Jr. for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.1(d).

Because Plaintiff failed timely to serve Defendant Keays pursuant to Federal Rule of Civil Procedure 4(m) after extensions of time had been granted, the Magistrate Judge issued a report and recommendation on June 28, 2013 recommending to dismiss without prejudice the claims asserted against Dr. Keays. Petitioner has not objected to the report and recommendation.

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).

In the absence of objections, the Court adopts the Report and Recommendation. For the reasons stated therein, all claims asserted against Defendant Keays are dismissed without prejudice.

IT IS SO ORDERED.


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