Borja v. Gonzalez et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION and dismisses Plaintiff's Fourteenth Amendment Equal Protection Claim. Signed by Judge Roger T. Benitez on 07/01/2011.(All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE A BORJA, CDCR #T-54311,

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CASE NO. 10cv1379 BEN (WMc)
Plaintiff,

ORDER ADOPTING REPORT
AND RECOMMENDATION

vs.
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F. GONZALEZ; J. GONZALEZ; M.
ALVAREZ; C. NEAL; DELEAT,
Defendants.

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Defendants filed a motion to dismiss Plaintiff Jose Borja’s Fourteenth Amendment

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Equal Protection claim on February 24, 2011. (Dkt. No. 23.) After two extensions of time to

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file an opposition, Plaintiff filed an Opposition on May 12, 2011. (Dkt. No. 29.) On May 17,

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2011, the Honorable Magistrate Judge William McCurine, Jr. issued a Report and

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Recommendation, recommending that the Court grant Defendants’ motion to dismiss. (Dkt.

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No. 30.) Any objections to the Report and Recommendation were due June 8, 2011. (Id.) No

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objections have been filed. For the reasons stated below, the Court ADOPTS the well-

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reasoned Report and Recommendation of the Magistrate Judge and GRANTS Defendants’

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motion to dismiss.

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A district judge “may accept, reject, or modify the recommended disposition” of a

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Magistrate Judge on a dispositive matter. F ED. R. C IV. P. 72(b)(3); see also 28 U.S.C.

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§636(b)(1).

“[T]he district judge must determine de novo any part of the [report and

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10cv1379

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recommendation] that has been properly objected to.” F ED. R. C IV. P. 72(b)(3). However,

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“[t]he statute makes it clear that the district judge must review the magistrate judge’s findings

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and recommendations de novo if objection is made, but not otherwise.” United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original), cert

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denied, 540 U.S. 900 (2003); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir.

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2005). “Neither the Constitution nor the statute requires a district judge to review, de novo,

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findings and recommendations that the parties themselves accept as correct.” Reyna-Tapia,

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328 F.3d at 1121. Accordingly, the Court may grant Defendants’ motion to dismiss on this

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basis alone.

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The Court has, however, reviewed the matter de novo and agrees that the motion to

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dismiss should be granted because Plaintiff has failed to state a claim for denial of equal

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protection. He fails to allege facts demonstrating he is a member of a protected class or that

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his membership in that class led to his treatment.

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In the absence of any objections and after a de novo review, the Court fully ADOPTS

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Judge McCurine’s Report and DISMISSES Plaintiff’s Fourteenth Amendment Equal

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Protection Claim.

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DATED: July 1, 2011

Hon. Roger T. Benitez
United States District Judge

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10cv1379