Rinaldi v. Poulos et al

Filing 21

ORDER ADOPTING 19 REPORT AND RECOMMENDATIONS; and Denying 9 Respondents' Motion to Dismiss: In the absence of objections, the court ADOPTS the Report and Recommendation. For the reasons stated in the Report and Recommendation, Respondents motion to dismiss is DENIED. Signed by Judge M. James Lorenz on 4/3/2009. (All non-registered users served via U.S. Mail Service).(mjj) (jrl).

1 2 3 4 5 6 7 8 9 10 11 JOSEPH RINALDI, 12 13 v. 14 15 16 17 M. E. POULOS et al., Respondents. Petitioner, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv1637-L(POR) ORDER (1) ADOPTING REPORT AND RECOMMENDATION; AND (2) DENYING RESPONDENTS' MOTION TO DISMISS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner Joseph Rinaldi, a state prisoner proceeding pro se, filed a petition for writ of

18 habeas corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge 19 Louisa S. Porter for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and 20 Civil Local Rule 72.1(d). Respondents filed a motion to dismiss for failure to exhaust 21 administrative remedies. Petitioner opposed the motion. On February 11, 2009 the Magistrate 22 Judge issued a Report and Recommendation, recommending to deny Respondents' motion. 23 Respondents have not filed any objections. 24 A district judge "may accept, reject, or modify the recommended disposition" on a

25 dispositive matter prepared by a magistrate judge proceeding without the consent of the parties 26 for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de 27 novo determination of those portions of the [report and recommendation] to which objection is 28 made." 28 U.S.C. § 636(b)(1). When no objections are filed, the de novo review is waived.
08cv1637

1 Section 636(b)(1) does not require review by the district court under a lesser standard. Thomas 2 v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must 3 review the magistrate judge's findings and recommendations de novo if objection is made, but 4 not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 5 (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. 6 Ariz. 2003) (applying Reyna-Tapia to habeas review). 7 In the absence of objections, the court ADOPTS the Report and Recommendation. For

8 the reasons stated in the Report and Recommendation, Respondents' motion to dismiss is 9 DENIED. 10 11 12 DATED: April 3, 2009 13 14 15 COPY TO: 16 HON. LOUISA S. PORTER UNITED STATES MAGISTRATE JUDGE 17 ALL PARTIES/COUNSEL 18 19 20 21 22 23 24 25 26 27 28
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08cv1637

IT IS SO ORDERED.

M. James Lorenz United States District Court Judge