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Outman v. Paramo

United States District Court, S.D. California

December 19, 2019

ROBERT H. OUTMAN, CDCR #P-79939, Plaintiff,
v.
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)

          HON. CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE

         Plaintiff 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 No. 22.)

         On 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.[1] (ECF No. 32.) The R&R further recommends that the Court grant Plaintiff leave to amend his Complaint. (Id. 18:9-20.)

         The 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.

         The 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).

         In this 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.

         IT IS SO ORDERED.

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Notes:

[1] The R&R determined that all Defendants are moving to dismiss Plaintiff's Complaint:

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 determination.


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