Douglas v. Smelosky et al

Filing 18

ORDER granting 9 Motion to Dismiss; Adopting 14 Report and Recommendation. It is ordered that Plaintiff's claim for relief against Defendant Smelosky is dismissed without prejudice, and with leave to amend. Plaintiff's claims for damage s against all Defendants in their official capacities are dismissed with prejudice, and without leave to amend. If Plaintiff desires to amend his claim against Defendant Smelosky to remedy the deficiencies identified in the Report, he must file an am ended complaint within30 days. If Plaintiff does not file an amended complaint within the time permitted, the only claim that will proceed in this action is his claim against Defendant Valenzuela in his individual capacity. Signed by Judge Michael M. Anello on 8/23/2011. (All non-registered users served via U.S. Mail Service)(leh) (jrl).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT DOUGLAS,
Plaintiff,

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CASE NO. 10 CV 1464 MMA (BGS)
ORDER ADOPTING REPORT
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE

vs.

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[Doc. No. 14]
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MICHAEL SMELOSKY, Warden; et al.,

GRANTING DEFENDANTS’
MOTION TO DISMISS

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Defendants.

[Doc. No. 9]

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Plaintiff Robert Douglas, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to United

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States Magistrate Judge Bernard G. Skomal pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local

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Rule 72.3. On November 30, 2010, Defendants Smelosky and Valenzuela filed a motion to

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dismiss Plaintiff’s complaint. [Doc. No. 9.] Plaintiff filed an opposition to Defendants’ motion on

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January 27, 2011. [Doc. No. 12.] On June 17, 2011, Judge Skomal filed a well-reasoned and

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thorough Report containing findings and conclusions, upon which he bases his recommendation

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that the Court grant Defendants’ motion to dismiss. [Doc. No. 14.] On July 5, 2011, Plaintiff

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moved to extend the time to file objections to the Report. [Doc. No. 16.] Judge Skomal granted

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Plaintiff’s request, and extended the deadline to file objections until August 15, 2011. [Doc. No.

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17.] No objections were filed.
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10cv1464

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Where, as here, the case has been referred to the magistrate judge pursuant to 28 U.S.C. §

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636, a district judge “may accept, reject, or modify the recommended disposition.” Fed. R. Civ. P.

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72(b); see 28 U.S.C. § 636(b)(1). “[T]he court shall make a de novo determination of those

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portions of the [Report and Recommendation] to which objection is made.” 28 U.S.C. §

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636(b)(1); see also Fed. R. Civ. P. 72(b). “The statute makes it clear that the district judge must

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review the magistrate judge’s findings and recommendations de novo if objection is made, but not

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otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114,1121 (9th Cir. 2003) (en banc).

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“Neither the Constitution nor the statute requires a district judge to review, de novo, findings and

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recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121.

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Accordingly, a district court is entitled to adopt a magistrate judge’s report and recommendation

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based on the lack of objections. Nonetheless, the Court has conducted a de novo review and

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agrees Defendants’ motion to dismiss should be granted.

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CONCLUSION

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Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of

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this case. Having carefully reviewed the entire file, the Court finds Judge Skomal’s Report and

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Recommendation to be supported by the record and based on a proper analysis. Accordingly, the

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Court ADOPTS the Report and Recommendation in its entirety and GRANTS Defendants’

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Motion to Dismiss. IT IS FURTHER ORDERED:

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(i)

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Plaintiff’s claim for relief against Defendant Smelosky is DISMISSED
WITHOUT PREJUDICE, and with leave to amend;

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(ii)

Plaintiff’s claims for damages against all Defendants in their official capacities are
DISMISSED WITH PREJUDICE, and without leave to amend.

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///

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///
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10cv1464

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(iii)

If Plaintiff desires to amend his claim against Defendant Smelosky to remedy the

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deficiencies identified in the Report, he must file an amended complaint within

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thirty (30) days. If Plaintiff does not file an amended complaint within the time

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permitted, the only claim that will proceed in this action is his claim against

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Defendant Valenzuela in his individual capacity.1

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IT IS SO ORDERED.

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DATED: August 23, 2011

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Hon. Michael M. Anello
United States District Judge

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Defendant Walker has not been served.
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10cv1464