Porter v. Howard et al

Filing 194

ORDER ADOPTING REPORT AND RECOMMENDATION. Court approves and adopts 192 Report and Recommendation in its entirety and grants Defendants' 150 Motion to Dismiss. Clerk directed to enter judgment accordingly. Signed by Judge Cynthia Bashant on 8/29/2014. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SAMUEL K. PORTER,

Case No. 10-cv-1817-BAS(PCL)

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Plaintiff,

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(1) APPROVING AND ADOPTING
REPORT AND
RECOMMENDATION IN ITS
ENTIRETY; AND

v.

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ORDER:

MUABE HOWARD, et al.,
Defendants.

(2) GRANTING DEFENDANTS’
MOTION TO DISMISS
[ECF Nos. 150, 192]

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On August 30, 2010, Plaintiff Samuel K. Porter, a state prisoner proceeding

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pro se and in forma pauperis, asserting civil-rights violations under 42 U.S.C. § 1983.

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On June 25, 2014, United States Magistrate Judge Peter C. Lewis issued a Report and

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Recommendation (“R&R”), recommending that this Court: (1) approve and adopt the

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R&R; and (2) direct that judgment be entered granting Defendants’ motion to dismiss.

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The time for filing objections to the R&R expired on July 30, 2014. (R&R 6:15–17.)

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To date, neither party has filed any objections.
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10cv1817

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I.

ANALYSIS

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The Court reviews de novo those portions of the R&R to which objections are

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made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or

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in part, the findings or recommendations made by the magistrate judge.” Id. But “[t]he

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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

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

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see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding

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that where no objections were filed, the district court had no obligation to review the

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magistrate judge’s report). “Neither the Constitution nor the statute requires a district

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judge to review, de novo, findings and recommendations that the parties themselves

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accept as correct.” Reyna-Tapia, 328 F.3d at 1121. This rule of law is well-established

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within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000

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n.13 (9th Cir. 2005) (“Of course, de novo review of a R & R is only required when an

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objection is made to the R & R.”); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D.

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Cal. 2005) (Lorenz, J.) (adopting report in its entirety without review because neither

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party filed objections to the report despite the opportunity to do so); see also Nichols

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v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

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In this case, the deadline for filing objections was on July 30, 2014. However,

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no objections have been filed, and neither party has requested additional time to do so.

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Consequently, the Court may adopt the R&R on that basis alone. See Reyna-Tapia,

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328 F.3d at 1121. Nonetheless, having conducted a de novo review of Defendants’

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motion to dismiss and the R&R, the Court concludes that Judge Lewis’ reasoning is

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sound and accurate in concluding that the motion to dismiss should be granted because

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the threshold issue that needs to be addressed violates the “law of the case doctrine.”

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(R&R 3:21–6:6.) Therefore, the Court hereby approves and ADOPTS IN ITS

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ENTIRETY the R&R. See 28 U.S.C. § 636(b)(1).

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//
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II.

CONCLUSION & ORDER

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Having reviewed the R&R and there being no objections, the Court APPROVES

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AND ADOPTS IN ITS ENTIRETY the R&R (ECF No. 192), and GRANTS

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Defendants’ motion to dismiss (ECF No. 150). The Clerk of the Court is directed to

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enter judgment accordingly.

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IT IS SO ORDERED.

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DATED: August 29, 2014

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Hon. Cynthia Bashant
United States District Judge

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