Lewis v. Cates et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION. The Court hereby approves and ADOPTS the R & R in its entirety (ECF 15 ), and GRANTS Respondents' motion to dismiss Claims One and Three. Plaintiff may amend Claim One if the amendment alleges a liberty interest in avoiding administrative segregation placement that imposes atypical and significant hardship upon Plaintiff. Plaintiff also may amend Claim Three to allege a denial of due process arising from Plaintiff's subsequent administrative segregation placement by Defendants Cates and Paramo. The Court dismisses Defendant Cates from this action without prejudice. Signed by Judge Dana M. Sabraw on 1/7/2016.(All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BRIAN DEVERICK LEWIS,
Plaintiff,

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Case No. 15-cv-791 DMS (MDD)
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
CATES, et al.,
Defendant.

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On April 9, 2015, Plaintiff Brian Deverick Lewis, a state prisoner proceeding

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pro se, filed this Complaint pursuant to, among other statutes, 42 U.S.C. § 1983.

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ECF 1. On September 14, 2015, Defendants filed a Partial Motion to Dismiss the

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Complaint, challenging Claims One and Three. ECF 9. Plaintiff opposed the

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motion.

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Claim One challenges the due process of the prison’s procedures, while Claim

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Three alleges due process violations by two individual defendants, Mathew Cates

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and Daniel Paramo, in connection with the prison’s housing procedures. On referral

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from this Court, the Magistrate Judge issued a Report and Recommendation (“R &

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R”) on Defendants’ motion. ECF 15. The Magistrate Judge recommended that this

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Court dismiss both Claims with leave to amend, and ordered that all objections to

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the R & R be filed by December 23, 2015.
–1–

15-cv-791 DMS (MDD)

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

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

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whole or in part, the findings or recommendations made by the magistrate judge.”

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Id. But “[t]he statute makes it clear that the district judge must review the magistrate

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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

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banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district

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court had no obligation to review the magistrate judge’s report). “Neither the

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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.” Id. “When no

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objections are filed, the de novo review is waived.” Marshall v. Astrue, No.

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08cv1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting

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report in its entirety without review because neither party filed objections to the

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report despite the opportunity to do so).

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In this case, the deadline for filing objections was December 23, 2015. No

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objections were 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, the Complaint, and the R & R, the Court hereby approves and

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ADOPTS the R & R in its entirety (ECF 15), and GRANTS Respondents’ motion

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to dismiss Claims One and Three. Plaintiff may amend Claim One if the amendment

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alleges a liberty interest in avoiding administrative segregation placement that

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imposes atypical and significant hardship upon Plaintiff. Plaintiff also may amend

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Claim Three to allege a denial of due process arising from Plaintiff’s subsequent

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administrative segregation placement by Defendants Cates and Paramo. The Court

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dismisses Defendant Cates from this action without prejudice.

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///
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15-cv-791 DMS (MDD)

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IT IS SO ORDERED.
Dated: January 7, 2016

_____________________________
The Honorable Dana M. Sabraw
United States District Court Judge

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15-cv-791 DMS (MDD)