United States District Court, S.D. California
ROBERT H. OUTMAN, CDCR #P-79939, Plaintiff,
DANIEL PARAMO, Warden; S. SANCHEZ, Captain; WILLIAMS, Correctional Counselor I; C. YORK, CCI; M. VILLATUERLE, CCII; B. VOGEL, CCI; B. OLIVARRIA, Appeals Coordinator; B. SELF; K. RODRIGUEZ, Psychologist; S. BAHRO, Ph.D Psychologist; JOHN & JANE DOES 1-10, Supervisory Mental Health Staff; JOHN & JANE DOES 1-10, Custody Staff, Defendants.
ORDER: (1) APPROVING AND ADOPTING REPORT AND
RECOMMENDATION (ECF NO. 32); AND (2) GRANTING MOTION TO
DISMISS (ECF NO. 22)
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
Robert H. Outman is a state prisoner proceeding pro
se and in forma pauperis. He brings claims
under 42 U.S.C. § 1983 against various prison officials
and employees. On June 11, 2019, Defendants B. Vogel, R.
Olivarria, S. Bahro, S. Searles (formerly Sanchez), K.
Rodriguez, B. Self, D. Paramo, M. Villafuerte, and C. York
moved to dismiss Plaintiff's claims against them. (ECF
November 5, 2019, U.S. Magistrate Judge Karen S. Crawford
issued a Report and Recommendation (“R&R”)
recommending that this Court grant the motion to dismiss as
to all of the Defendants named in the
Complaint. (ECF No. 32.) The R&R further
recommends that the Court grant Plaintiff leave to amend his
Complaint. (Id. 18:9-20.)
Magistrate Judge ordered that any objections to the R&R
be filed no later than December 2, 2019, and that any replies
to the objections be filed no later than December 16, 2019.
(R&R 19:22-26.) To date, the parties have not filed any
objections or requests for additional time to do so.
Court reviews de novo those portions of the R&R
to which objections are made. 28 U.S.C. § 636(b)(1). The
Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” Id. But “[t]he 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); see also Schmidt v. Johnstone, 263
F.Supp.2d 1219, 1226 (D. Ariz. 2003) (concluding that where
no objections were filed, the district court had no
obligation to review the magistrate judge's report).
“Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and
recommendations that the parties themselves accept as
correct.” Reyna-Tapia, 328 F.3d at 1121.
“When no objections are filed, the de novo review is
waived.” Marshall v. Astrue, No. 08-cv-1735,
2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.)
(adopting report in its entirety without review because
neither party filed objections to the report despite the
opportunity to do so).
case, the deadline for filing objections was December 2,
2019. However, the parties have not filed any objections or
requests for additional time to do so. Consequently, the
Court may adopt the R&R on that basis alone. See
Reyna-Tapia, 328 F.3d at 1121. Having nonetheless
reviewed the R&R, the Court agrees with the R&R's
recommendations. Accordingly, the Court hereby approves and
ADOPTS the R&R in its entirety (ECF No.
32). The Court also GRANTS Defendants'
motion to dismiss (ECF No. 22). The Court
DISMISSES Plaintiffs Complaint in its
entirety. Further, the Court grants Plaintiff leave to file a
First Amended Complaint. If Plaintiff chooses to amend his
Complaint, he must file the First Amended Complaint no
later than January 21, 2020. The Court warns
Plaintiff that a failure to file a First Amended Complaint by
January 21, 2020, will result in the Court dismissing this
action and closing the case.
 The R&R determined that all
Defendants are moving to dismiss Plaintiff's
Defendants Williams and Villafuerte have not been
served with the Complaint. [Doc. No. 22-1, at p. 16.] In his
Complaint, plaintiff misspelled defendant Villafuerte's
name as Villatuerle. On the caption of defendants' Motion
to Dismiss, defendant Williams is not listed as one of the
defendants bringing the Motion; defendant Villafuerte is
listed as one of the defendants bringing the Motion. Both
defendants Williams and Villafuerte are mentioned in the body
of the Motion, so the Court will assume that defense counsel
intended to include these defendants as parties to the Motion
to Dismiss even though they have not been served.
(R&R 2 n.1.) This Court adopts the R&R's