United States District Court, C.D. California
ORDER ADOPTING THE REPORT & RECOMMENDATION;
DISMISSING SECOND AMENDED COMPLAINT WITHOUT PREJUDICE;
PERMITTING PLAINTIFF TO FILE THIRD AMENDED COMPLAINT BY
FRIDAY, AUGUST 19, 2016
Valerie Baker Fairbank Senior United States District Judge
an action for a Writ of Habeas Corpus by a Person in State
Custody Pursuant to 28 U.S.C. section 2254. Pursuant to her
authority under Fed.R.Civ.P. 72(b)(1), title 28 U.S.C.
section 636(b)(1)(B), and C.D. Cal. Local Civil Rule 72-3.3,
the United States Magistrate Judge issued a Report and
Recommendation ("R&R") on May 2, 2016. See
Case Management / Electronic Case Filing System Document
("Doc") Doc 58. The R&R recommends that the second
amended complaint be dismissed without prejudice for failure
to state a claim on which relief could be granted, and that
plaintiff be granted leave to further amend the complaint by
a date certain.
to 28 U.S.C. § 636(b)(1), the Court has reviewed the
second amended complaint (Doc 66), the Magistrate Judge's
R&R (Doc 58), and the applicable law.
has not filed written objections to the R&R within the time
allotted by our Local Civil Rule 72-3.4, nor has he
sought an extension of the objection deadline. Accordingly,
the Court proceeds to the issues without waiting further.
terms, Federal Rule of Civil Procedure 72(b)(3) requires a
District Judge to conduct de novo review only of those
portions of an R&R to which a party has filed timely specific
objection. See, e.g., Rael v. Foulk, No. LA CV
14-02987 Doc. 47, 2015 WL 4111295, *1 (C.D. Cal. July 7,
2015) (Fairbank, J.) ("As required by Fed.R.Civ.P.
72(b)(3), the Court has engaged in de novo review of the
portions of the R&R to which petitioner has specifically
objected . . . ."), COA denied, No. LA CV
14-02987 Doc. 53, Appeal No. 15-56205 (9th Cir. Feb. 18,
the Ninth Circuit has held that absent a timely objection
purporting to identify specific defects in the R&R, the
District Judge has no obligation to review the R&R at all.
See Beard v. Nooth, 2013 WL 3934188, *1 (D. Or. July
30, 2013) ("For those portions of a magistrate's
findings and recommendations to which neither party has
objected, the [Federal Magistrates] Act does not prescribe
any standard of review.") (citing Thomas v.
Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 473 (1985)
("There is no indication that Congress, in enacting [the
Federal Magistrates Act], intended to require a district
judge to review a magistrate's report.[.]") and
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9thCir. 2003) (en banc) (district judge must
review a magistrate's findings and recommendations de
novo if objections are made, "but not otherwise"));
see, e.g., Herring v. Maricopa County
Sheriff's Office, 2016 WL 2754851, *1 (D. Ariz.
May 12, 2016) (Campbell, J.) ("No objection has been
filed, which relieves the Court of its obligation to review
the R&R.") (citing, inter alia,
Reyna-Tapia, 328 F.3d at 1121, and Thomas,
474 U.S. at 149); Hussak v. Ryan, 2016 WL 2606993,
*1 (D. Ariz. May 6, 2016) (Rayes, J.) (same).
the Magistrates Act does not preclude a district
judge from reviewing an R&R to make sure that it recommends a
legally permissible and appropriate outcome (based on sound
reasoning and valid precedent) if she chooses to do so."
Juarez v. Katavich, 2016 WL 2908238, *2 (C.D. Cal.
May 17, 2016) (Fairbank, J.) (citing Beard, 2013 WL
3934188 at *1 (although in the absence of objections no
review is required, the Magistrates Act "‘does not
preclude further review by the district judge sua
sponte . . . under a de novo or any other
standard") (quoting Thomas, 474 U.S. at 154)).
"‘Indeed, the Advisory Committee Notes to
Fed.R.Civ.P. 72(b) recommend that [w]hen no timely objection
is filed, the Court review the magistrate's
recommendations for clear error on the face of the
record.'" Juarez, 2016 WL 2908238 at *2
(quoting Beard, 2013 WL 3934188 at *1 (internal
quotation marks omitted)).
an abundance of caution, then, the Court has reviewed the
R&R. On either clear-error or de novo review, the Court finds
no defect of law, fact, or logic in the R&R. Therefore the
Court will adopt the R&R and implement its recommendations.
Report and Recommendation is ADOPTED. The Second Amended
Complaint [Doc #66] is DISMISSED without prejudice.
later than Friday, August 19, 2016, plaintiff MAY FILE a
Third Amended Complaint that rectifies the deficiencies
identified in the Report and Recommendation.
plaintiff fails to file a Third Amended Complaint by that
deadline, the Court will convert the dismissal of his action
from "without prejudice" to "with
prejudice" on Friday, September 2, 2016 without further
opportunity for objection or argument.
Court will not enter ...