United States District Court, S.D. California
June 11, 2015
KEVIN LAMARR ANDRES, Plaintiff,
C.O. MARSHALL, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
DANA M. SABRAW, District Judge.
Plaintiff Kevin Lamarr Andres, a state prisoner proceeding pro se, filed a complaint under 42 U.S.C. § 1983 alleging use of excessive force, interference with access to the courts, and violation of procedural due process rights. The action was referred to Magistrate Judge Bernard G. Skomal for a report and recommendation ("R&R") pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d).
In an R&R dated December 10, 2014, based on the defense of failure to exhaust administrative remedies, Judge Skomal recommended granting Defendants' motion for summary judgment with leave to amend. During the pendency of objections to the R&R, on January 23, 2015, Plaintiff filed an amended complaint, and on February 6, 2015, a corrected amended complaint. On February 25, 2015, Defendants filed a motion to dismiss the amended complaint. On March 25, 2015, the Court adopted the December 10, 2014 R&R insofar it recommended dismissal of the initial complaint for failure to exhaust, and rejected it insofar as it granted leave to amend. On April 9, 2014, Judge Skomal issued an R&R recommending the dismissal of the amended complaint. No objections to the R&R have been filed.
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 R&R. Accordingly, the amended complaint is dismissed in its entirety without leave to amend and without prejudice to refiling the action upon proper exhaustion of administrative remedies.
IT IS SO ORDERED.