Dukes v. Spence et al

Filing 58

ORDER adopting re 52 Report and Recommendation and granting 39 Defendants' Motion for Partial Summary Judgment with respect to claims asserted against Defendants K. Spence, K. Smith and J. Ponce. Signed by Judge M. James Lorenz on 6/15/2011. (mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 DARNELL DUKES,
Plaintiff,

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13 v.
14 K. SPENCE, et al.,
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Defendants.

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Civil No. 09cv1463-L(WVG)
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
GRANTING DEFENDANTS’
MOTION FOR PARTIAL
SUMMARY JUDGMENT

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Plaintiff Darnell Dukes, a state prisoner proceeding pro se and in forma pauperis, filed

18 this action under 42 U.S.C. § 1983 alleging Eighth Amendment violations for use of excessive
19 force against numerous Defendants. The case was referred to United States Magistrate Judge
20 William V. Gallo for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B)
21 and Civil Local Rule 72.3.
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Three of the seven Defendants moved for summary judgment with respect to Plaintiff’s

23 excessive force claims. The Magistrate Judge issued a Report and Recommendation,
24 recommending the summary judgment motion be granted with respect to claims asserted against
25 Defendants K. Spence, K. Smith and J. Ponce. Plaintiff filed no objections.
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A district judge may accept, reject, or modify the recommended decision on a dispositive

27 matter prepared by a magistrate judge proceeding without the consent of the parties for all
28 purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). “The court shall make a de novo
09cv1463

1 determination of those portions of the [report and recommendation] to which objection is
2 made.” 28 U.S.C. § 636(b)(1). Section 636(b)(1) does not require some lesser review by the
3 district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The
4 “statute makes it clear that the district judge must review the magistrate judge’s findings and
5 recommendations de novo if objection is made, but not otherwise." United States v.
6 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see
7 Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003).
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In the absence of any objections, the court ADOPTS the Report and Recommendation.

9 Defendants’ motion for summary judgment with respect to claims asserted against Defendants
10 K. Spence, K. Smith and J. Ponce is GRANTED.
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IT IS SO ORDERED.

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13 DATED: June 15, 2011
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M. James Lorenz
United States District Court Judge

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COPY TO:
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HON. WILLIAM V. GALLO
17 UNITED STATES MAGISTRATE JUDGE
18 ALL PARTIES/COUNSEL
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09cv1463