Eusse, Jr. v. Vitela et al

Filing 24

ORDER Adopting Report and Recommendation ( 18 , 21 , 23 ). Plaintiff's motion for leave to file a second amended complaint is granted, and Defendants' motion to dismiss is denied as moot. Plaintiff shall file his second amended complaint on or before July 25, 2014. Signed by Judge Roger T. Benitez on 6/25/2014. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CASE NO. 13cv916 BEN (NLS)

JAMES EUSSE, JR.,

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vs.

Plaintiff,

ORDER ADOPTING
REPORT AND
RECOMMENDATION

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MARCO VITELA, et aI.,

[Docket Nos. 18,21,23]
Defendants.

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On February 28, 2014, Defendants E. Duarte, M. Carpio, R. Nelson, G. Janda,

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18 M. Whitman, and M. Vitela filed a motion to dismiss portions ofPlaintiff James Eusse,
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Jr.'s First Amended Complaint. (Docket No. 18.) On April 28, 2014, Plaintiff filed a

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motion for leave to file a second amended complaint. (Docket No. 21.) On June 10,

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2014, Magistrate Judge Nita L. Stormes issued a Report and Recommendation

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recommending the Court grant Plaintiff James Eusse, Jr. 's motion for leave to file a

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second amended complaint and deny Defendants' motion to dismiss as moot. (Docket

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No.23.) Any objections to the Report and Recommendation were due June 24,2014.

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(Jd.) Neither party has filed any objections. For the reasons that follow, the Report and

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Recommendation is ADOPTED.

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II

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II
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13cv916

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A district judge "may accept, reject, or modify the recomm~ndeddisposition" of

2 a magistrate judge on a dispositive matter. FED. R. CIV. P. 7Z(b)(3); see also 28 U.S.C ..
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§ 636(b)( 1). "The district judge must determine de novo any, part ofthe [report and

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recommendation] that has been properly objected to.", FED. R.'CIV. P. 72(b)(3).

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However, "[t ]he statute makes it clear that the district judge must review the magistrate

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if objection is made, but not

7 otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
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banc) (emphasis in original); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th

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Cir. 2005). "Neither the Constitution nor the statute requires a district judge to review,

lOde novo, findings and recommendations that the parties themselves accept as correct."
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Reyna-Tapia, 328 F.3d at 1121.

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In the absence of any objections, the Court fully ADOPTS Judge Stormes'

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Report and Recommendation. Plaintiffs motion for leave to file a second amended

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complaint is GRANTED, and Defendants' motion to dismiss is DENIEDas mo~t.

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Plaintiff shall file his second amended complaint on or before July 25, 2014.

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IT IS SO ORDERED.

:: DATED:

Jun~

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13cv916