Sneed v. Lira et al

Filing 84

ORDER ADOPTING REPORT AND RECOMMENDATION 81 Report and Recommendation, Granting 58 Motion for Summary Judgment and dismissing this case. Signed by Judge Thomas J. Whelan on 1/11/2012.(All non-registered users served via U.S. Mail Service)(mtb)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 PHILLIP CHARLES SNEED, 12 13 v. CASE NO. 09-CV-2853 W (MDD) Plaintiff, ORDER (1) ADOPTING REPORT AND RECOMMENDATION [DOC. 81], (2) GRANTING SUMMARY JUDGMENT [DOC. 58] AND (3) DISMISSING THIS CASE 14 15 16 17 C. LIRA, et al., Defendants. On December 17, 2009, Plaintiff Phillip Charles Sneed, proceeding pro se, filed 18 this civil rights action under 42 U.S.C. § 1983. Plaintiff alleges that Correctional 19 Officer Defendants violated California law and his Eighth Amendment right to be free 20 from cruel and unusual punishment when one of the Defendants allegedly attacked 21 Plaintiff while the other Defendant looked on. 22 On June 1, 2011, Defendants filed the pending summary-judgment motion. 23 [Doc. 81.] On June 2, 2011, a notice was sent to Plaintiff under Klingele v. Eikenberry, 24 849 F.2d 409 (9th Cir. 1988) (en banc), advising him of the requirements for opposing 25 Defendants’ motion. [Doc. 59.] The notice specifically advised Plaintiff that in 26 opposing the motion, he could not “simply rely on what your complaint says” and that 27 he “must set out specific facts in declarations, depositions, answers to interrogatories, 28 or authenticated documents . . . that contradict the facts shown in” Defendants’ -1- 09cv2853w 1 evidence supporting their motion. [See Doc. 59 at 1:27–2:3.] 2 On June 20, 2011, Plaintiff filed an opposition to the motion. [Doc. 63.] The 3 opposition only addressed outstanding discovery issues. [See Id.] Accordingly, with the 4 close of discovery and resolution of the discovery issues, on September 28, 2011, 5 Magistrate Judge Mitchell D. Dembin issued an order granting Plaintiff leave to file an 6 amended opposition. [Doc. 73.] The order reminded Plaintiff of the Klingele/Rand 7 notice he previously received. [Id. at 2:14–15.] Plaintiff did not file an amended 8 opposition. 9 On November 3, 2011, Magistrate Judge Dembin issued a Report and 10 Recommendation (“Report”), recommending that the Court grant the summary11 judgment motion. The Report also ordered that any objections were to be filed by 12 November 28, 2011, and any reply filed by December 12, 2011. To date, no objection 13 has been filed, nor has there been a request for additional time in which to file an 14 objection. 15 A district court’s duties concerning a magistrate judge’s report and 16 recommendation and a respondent’s objections thereto are set forth in Rule 8(b) of the 17 Rules Governing Section 2254 Cases in the United States District Courts. See Mayle 18 v. Felix, 545 U.S. 644, 654 (2005) (Acknowledging that a “discrete set of Rules governs 19 federal habeas proceedings launched by state prisoners.”) Rule 8(b) provides that a 20 district judge “must determine de novo any proposed finding or recommendation to 21 which objection is made.” In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 22 Cir. 2003), the Ninth Circuit interpreted identical language in 28 U.S.C. 636(b)(1)(c) 23 as making clear that “the district judge must review the magistrate judge’s findings and 24 recommendations de novo if objection is made, but not otherwise.” (emphasis in 25 original); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)(“Of 26 course, de novo review of a R & R is only required when an objection is made to the R 27 & R.”)(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 28 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (adopted Report without review because neither -2- 09cv2853w 1 party filed objections to the Report despite the opportunity to do so, “accordingly, the 2 Court will adopt the Report and Recommendation in its entirety.”); see also Nichols v. 3 Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (same). 4 The Court recognizes that other district courts within the Ninth Circuit have 5 previously held that de novo review of the magistrate judge’s findings of law is required 6 even where the prisoner does not object. See Johnson v. Nelson, 142 F.Supp.2d 1215, 7 1217 (S.D.Cal. 2001); Avratin v. Bermudez, 420 F. Supp.2d 1121, 1122-23 (S.D.Cal. 8 2006); Cordeiro v. Hernandez, 2010 WL 364193 (S.D.Cal. 2010). These cases, 9 however, are all rooted in the Ninth Circuit’s decision in Britt v. Simi Valley Unified 10 School District, 708 F.2d 452 (9th Cir. 1983). The Court finds that reliance on Britt 11 is no longer appropriate given the Ninth Circuit’s more recent en banc decision in 12 Renya-Tapia. See Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 13 2003) (concluding that Renya-Tapia overruled Britt’s requirement that district court’s 14 review findings of law even where no objections is filed). 15 Accordingly, because Plaintiff has not filed an objection, the Court accepts Judge 16 Dembin’s recommendation, and ADOPTS the Report [Doc. 81] in its entirety. For the 17 reasons stated in the Report, which is incorporated herein by reference, the Court 18 GRANTS Defendants’ summary-judgment motion [Doc. 58] and ORDERS this case 19 DISMISSED. 20 21 IT IS SO ORDERED. 22 DATED: January 11, 2012 23 24 Hon. Thomas J. Whelan United States District Judge 25 26 27 28 -3- 09cv2853w

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