Millare v. Stratton et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATION. Court adopts 30 Report and Recommendation in its entirety. Granting in part and denying in part Defendants R. Olsen, F. Fernandez, H. Asbury, G. Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B. Baen ziger, R. Olivarria, K.A. Seibel, and V. Sosa's 16 Motion to Dismiss for Failure to State a Claim, which was joined by Defendant O. Shelland 21 . Court denies Dfts R. Olsen, R. Olivarria, B. Baenziger, B. Self, and V. Sosa's request to dismiss Pla's tenth count for First Amendment retaliation. Court denies Dfts K.A. Seibel and G. Stratton's request to dismiss Pla's eleventh count for First Amendment retaliation. Court grants Dft R. Olsen, F. Fernandez, H. Asbury, G. Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B. Baenziger, R. Olivarria, K.A. Siebel, V. Sosa, and O. Shelland's request to dismiss with prejudice Pla's twelfth count for violation of the Eighth Amendment. Court dismisses Pla' s twelfth count against Dfts without leave to amend. Court grants Dfts R. Olsen, F. Fernandez, H. S. Asbury, G. Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B. Baenziger, R. Olivarria, K. A. Seibel, V. Sosa, and O. Shelland's request to dismiss with prejudice Pla's thirteenth, fourteenth, and fifteenth counts for violation of state law. Court dismisses Pla's thirteenth, Fourteenth, and fifiteenth counts against Dfts witiout leave to amend. Signed by Judge Cynthia Bashant on 4/5/2017. (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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MORIANO MILLARE,
Plaintiff,

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Case No. 16-cv-01633-BAS-MDD
ORDER:
(1) APPROVING AND
ADOPTING REPORT AND
RECOMMENDATION IN ITS
ENTIRETY (ECF No. 30); AND

v.

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G. STRATTON, et al.,
Defendants.

(2) GRANTING IN PART AND
DENYING IN PART
DEFENDANTS R. OLSEN, F.
FERNANDEZ, H. ASBURY, G.
STRATTON, G. CHARLTON,
T. VASQUEZ, C. MOORE, B.
SELF, B. BAENZIGER, R.
OLIVARRIA, K.A. SEIBEL, V.
SOSA, AND O. SHELLAND’S
MOTION TO DISMISS
(ECF Nos. 16, 21)

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Plaintiff Moriano Millare is a state prisoner proceeding pro se and in forma

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pauperis. He asserts various claims under 28 U.S.C. § 1983 and California state law

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against numerous corrections officials. On December 19, 2016, Defendants R. Olsen,

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F. Fernandez, H. Asbury, G. Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B.
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Baenziger, R. Olivarria, K.A. Seibel, and V. Sosa moved to dismiss counts ten

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through fifteen of Plaintiff’s Complaint. (ECF No. 16.) Defendant O. Shelland later

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joined in the motion to dismiss as to those claims that are also alleged against him—

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counts twelve through fifteen. (ECF No. 21.)

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On February 28, 2017, United States Magistrate Judge Mitchell D. Dembin

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issued a Report & Recommendation (“R&R”) recommending this Court grant in part

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and deny in part the motion to dismiss. (ECF No. 30.) Specifically, the R&R first

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recommends the Court deny Defendants R. Olsen, R. Olivarria, B. Baenziger, B. Self,

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and V. Sosa’s request to dismiss Plaintiff’s tenth count for First Amendment

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retaliation. (Id. 24:9–11.) Second, the R&R similarly recommends the Court deny

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Defendants K.A. Seibel and G. Stratton’s request to dismiss Plaintiff’s eleventh count

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for First Amendment retaliation. (Id. 24:12–14.) Third, the R&R recommends the

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Court grant the thirteen Defendants’ request to dismiss with prejudice Plaintiff’s

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twelfth count for violation of the Eighth Amendment. (Id. 24:15–16.) Fourth, the

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R&R recommends the Court grant the thirteen Defendants’ request to dismiss with

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prejudice Plaintiff’s thirteenth, fourteenth, and fifteenth counts for violation of state

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law. (Id. 24:17–19.)

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The magistrate judge ordered that any objections to the R&R be filed no later

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than March 22, 2017, and that any replies to the objections be filed no later than

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March 29, 2017. (R&R 24:22–25.) To date, the parties have not filed any objections

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or requests for additional time to do so.

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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

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“[t]he statute makes it clear that the district judge must review the magistrate judge’s

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findings and recommendations de novo if objection is made, but not otherwise.”

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

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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.” Id. “When no objections are filed, the de novo review is waived.”

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Marshall v. Astrue, No. 08-cv-1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10,

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2010) (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).

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In this case, the deadline for filing objections was March 22, 2017. However,

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the parties have not filed any objections or requests for 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. Having nonetheless reviewed the R&R, the Court agrees with the

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R&R’s recommendations. Accordingly, the Court hereby approves and ADOPTS

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the R&R in its entirety (ECF No. 30). The Court therefore GRANTS IN PART and

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DENIES IN PART Defendants R. Olsen, F. Fernandez, H. Asbury, G. Stratton, G.

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Charlton, T. Vasquez, C. Moore, B. Self, B. Baenziger, R. Olivarria, K.A. Seibel,

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and V. Sosa’s motion to dismiss (ECF No. 16), which has been joined by Defendant

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O. Shelland (ECF No. 21), as follows:
(1)

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The Court DENIES Defendants R. Olsen, R. Olivarria, B. Baenziger,

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B. Self, and V. Sosa’s request to dismiss Plaintiff’s tenth count for First Amendment

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retaliation.
(2)

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The Court DENIES Defendants K.A. Seibel and G. Stratton’s request

to dismiss Plaintiff’s eleventh count for First Amendment retaliation.
(3)

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The Court GRANTS Defendants R. Olsen, F. Fernandez, H. Asbury, G.

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Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B. Baenziger, R. Olivarria,

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K.A. Seibel, V. Sosa, and O. Shelland’s request to dismiss with prejudice Plaintiff’s

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twelfth count for violation of the Eighth Amendment. The Court dismisses Plaintiff’s

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twelfth count against these Defendants without leave to amend.

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//
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(4)

The Court GRANTS Defendants R. Olsen, F. Fernandez, H. Asbury, G.

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Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B. Baenziger, R. Olivarria,

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K.A. Seibel, V. Sosa, and O. Shelland’s request to dismiss with prejudice Plaintiff’s

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thirteenth, fourteenth, and fifteenth counts for violation of state law. The Court

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dismisses Plaintiff’s thirteenth, fourteenth, and fifteenth counts against these

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Defendants without leave to amend.

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IT IS SO ORDERED.

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DATED: April 5, 2017

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