McGinnis v. Ramos

Filing 27

ORDER: (1) Adopting 23 Report and Recommendation; (2) Granting In Part And Denying In Part Defendants' 9 Motion to Dismiss. It is ordered that plaintiff shall file an amended complaint, if any on or before 3/3/2017. Failure to file an amended complaint by this date may result in dismissal. Signed by Judge Janis L. Sammartino on 2/3/2017. (All non-registered users served via U.S. Mail Service)(dxj)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ANTHONY McGINNIS, P-19835,

Case No.: 15-CV-2812 JLS (JLB)

Plaintiff,

12
13
14

ORDER: (1) ADOPTING REPORT
AND RECOMMENDATION, AND (2)
GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

v.
A.T. RAMOS,

15

Defendant.

16

(ECF Nos. 9, 23)

17
18

Presently before the Court are (1) Defendant A.T. Ramos’s Motion to Dismiss (ECF

19

No. 9), and (2) Magistrate Judge Jill L. Burkhardt’s Report and Recommendation granting

20

in part and denying in part Defendant’s Motion to Dismiss (“R&R,” ECF No. 23).

21

Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

22

court’s duties in connection with a magistrate judge’s R&R. The district court must “make

23

a de novo determination of those portions of the report to which objection is made,” and

24

“may accept, reject, or modify, in whole or in part, the findings or recommendations made

25

by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447

26

U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In

27

the absence of timely objection, however, the Court “need only satisfy itself that there is

28

no clear error on the face of the record in order to accept the recommendation.” Fed. R.
1
15-CV-2812 JLS (JLB)

1

Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196,

2

206 (9th Cir. 1974)).

3

Here, Plaintiff failed to file timely objections to Judge Burkhardt’s R&R. Having

4

reviewed the R&R, the Court finds that it is well reasoned and contains no clear error.

5

Accordingly, the Court (1) ADOPTS in its entirety Judge Burkhardt’s R&R (ECF No. 23),

6

and (2) GRANTS IN PART and DENIES IN PART Defendant’s MTD (ECF No. 9).

7

Plaintiff SHALL FILE an amended complaint, if any, on or before March 3, 2017. Failure

8

to file an amended complaint by this date may result in dismissal.

9
10

IT IS SO ORDERED.
Dated: February 3, 2017

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
15-CV-2812 JLS (JLB)