Newberry v. Barreras et al

Filing 18

ORDER ADOPTING 17 REPORT AND RECOMMENDATION; Granting Without Prejudice 9 Motion to Dismiss; and Granting Leave to Amend the Complaint: Plaintiff may file an amended complaint that complies with the issues raised in the Report. If plaintiff intends to prosecute this action, the amended complaint shall be filed and served on opposing counsel no later than February 6, 2009. Signed by Judge M. James Lorenz on 1/9/2009. (All non-registered users served via U.S. Mail Service).(mjj)

1 2 3 4 5 6 7 8 9 10 11 THEODORE E. NEWBERRY, 12 13 v. 14 N. BARRERAS, M.D., et al., 15 16 17 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv552 L (PCL) ORDER ADOPTING REPORT AND RECOMMENDATION; GRANTING WITHOUT PREJUDICE MOTION TO DISMISS [doc. #9]; and GRANTING LEAVE TO AMEND THE COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff Theodore E. Newberry filed a pro se complaint under 42 U.S.C. § 1983 that

18 alleged defendants violated his constitutional right under the Eighth Amendment to be free from 19 cruel and unusual punishment for deliberately ignoring plaintiff's medical needs and pain. The 20 matter was referred to United States Magistrate Judge Peter C. Lewis, for a Report and 21 Recommendation ("Report"). See 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The 22 magistrate judge issued a Report recommending the motion be granted and requiring objections, 23 if any, to the Report to be filed no later than December 29, 2008. [doc. #17] To date, no 24 objections have been filed. 25 A district judge "may accept, reject, or modify the recommended decision" on a

26 dispositive matter prepared by a magistrate judge proceeding without the consent of the parties 27 for all purposes. FED. R. CIV. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de 28 novo determination of those portions of the [report and recommendation] to which objection is
08cv552

1 made." 28 U.S.C. § 636(b)(1). Section 636(b)(1) does not require some lesser review by the 2 district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The 3 "statute makes it clear that the district judge must review the magistrate judge's findings and 4 recommendations de novo if objection is made, but not otherwise." United States v. Reyna5 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see Schmidt v. 6 Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to 7 habeas review). 8 Having reviewed the Report and no objections having been filed, defendants' motion to

9 dismiss without prejudice is GRANTED. Plaintiff may file an amended complaint that 10 complies with the issues raised in the Report. If plaintiff intends to prosecute this action, the 11 amended complaint shall be filed and served on opposing counsel no later than February 6, 12 2009. 13 IT IS SO ORDERED.

14 DATED: January 9, 2009 15 16 17 COPY TO: 18 HON. PETER C. LEWIS UNITED STATES MAGISTRATE JUDGE 19 20 ALL PARTIES/COUNSEL 21 22 23 24 25 26 27 28
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M. James Lorenz United States District Court Judge