Marella v. Terhune, et al

Filing 128

ORDER Adopting 127 Report and Recommendation and Granting Defendants' Motion for Summary Judgment. Signed by Judge Roger T. Benitez on 9/12/2011. (All non-registered users served via U.S. Mail Service)(knb)

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FILED

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CLERK. U.S. DISTRICT COURT
IOUTHIAN DISTAl
AliFORNIA

BY
DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LEONARD MICHAEL MARELLA,

CASE NO. 03-cv-00660 BEN (MDD)
Plaintiff,

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ORDER ADOPTING REPORT
AND RECOMMENDATION AND
GRANTING DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT

vs.
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C.A. TERHUNE, Director of the California
Department of Corrections, et al.,

[Docket Nos. SO, 127]

Defendants.

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Plaintiff Leonard Michael Marella, a state prisoner proceeding pro se, filed a Complaint on

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April 2, 2003, pursuant to 42 U.S.C. § 1983. (Docket No. 1.) Also on April 2, 2003, Plaintiff filed

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a Memorandum of Facts and Claims for Relief, listing six additional claims for relief. (Docket No.

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2.) Defendants filed a Motion to Dismiss on May 21, 2004, which the Court granted in part and denied

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in part. (Docket Nos. 26,34.) Defendants filed a Motion for Summary Judgment on March 15,2006.

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(Docket No. SO.) Plaintiff filed an opposition, and Defendants filed a reply. (Docket Nos. 75, 77.)

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On July 25, 2006, Magistrate Judge Anthony J. Battaglia issued an order requiring supplemental

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briefing regarding the impact on this case of the Supreme Court's decision in Woodford v. Ngo, 548

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U.S. 81,84 (2006). (Docket No. 78.) Defendants filed a Supplemental Memorandum of Points and

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Authorities, Plaintiff filed an Opposition to Defendants' Supplemental Memorandum of Points and

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Authorities, and Defendants filed a Reply to Plaintiffs Opposition. (Docket Nos. 79, 81, 83.) On

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September 27, 2006, Judge Battaglia issued a Report and Recommendation recommending that

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Defendants' Rule 12(b) motion for failure to exhuast administrative remedies be granted and finding

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the motion for summary judgment to be moot. (Docket No. 85.) This Report and Recommendation

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was adopted by the undersigned. (Docket No. 89.)

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On December 21, 2006, Plaintiff filed an appeal ofthe adopted Report and Recommendation.

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(Docket No. 90.) On October 5, 2009, the Ninth Circuit Court ofAppeals reversed the District Court's

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12(b) dismissal and remanded for a determination of Plaintiff s opportunity and ability to file a timely

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grievance. (Docket No. 100.) On November 19, 2009, Judge Battaglia ordered supplemental briefing

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regarding the exhaustion of administrative remedies.

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Supplemental Briefing, Plaintiff filed an Affidavit in Opposition to Defendants' Supplemental

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Briefing, and Defendants filed a Reply to Plaintiff s Affidavit. (Docket Nos. 106, 115, 116.) On

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January 7, 2011, Judge Battaglia ordered additional supplemental briefing. (Docket No. 119.) On

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January 24,2011, Defendants filed additional Supplemental Briefing. (Docket No. 120.) This action

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was transferred to Magistrate Judge Jan M. Adler on March 11,2011, and then to Magistrate Judge

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Mitchell D. Dembin on March 25, 2011.

(Docket No. 101.)

Defendants filed

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Judge Dembin issued a thoughtful and thorough Report and Recommendation. (Docket No.

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127.) The Report and Recommendation found that Defendants have not proven that Plaintiff failed

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to exhaust his administrative remedies, and that the motion for summary judgment is therefore not

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moot. In addition, the Report and Recommendation recommended that Defendants' Motion for

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Summary Judgment be granted. Any objections to the Report and Recommendation were due

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September 7, 2011. (Jd) Plaintiff did not file any objections. For the reasons that follow, the Report

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and Recommendation is ADOPTED.

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A district judge "may accept, reject, or modify the recommended disposition" of a magistrate

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judge on a dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(l). "[T]he district

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judge must determine de novo any part of the [report and recommendation] that has been properly

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objected to." FED. R. CIV. P. 72(b)(3). However, "[t]he statute makes it clear that the district judge

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must review the magistrate judge's findings and recommendations de novo

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not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane)

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(emphasis in original); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). "Neither

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if objection is made, but

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the Constitution nor the statute requires a district judge to reVIew, de novo, findings and

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recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121.

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Accordingly, the Court may grant Defendants' Motion for Summary Judgment on this basis alone.

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In the absence of any objections, the Court fully ADOPTS Judge Dembin's Report and
Recommendation. Defendants' Motion for Summary Judgment is GRANTED.

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IT IS SO ORDERED.

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DATED: Septembea 2011

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