Briceno v. Williams et al

Filing 50

ORDER adopting 49 the Magistrate Judge's Report and Recommendation and denying 44 Plaintiff's Motion to Amend. Signed by Judge John A. Houston on 4/29/2019. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
MARCUS D. BRICENO,

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Case No.: 16cv1665-JAH (AGS)
Plaintiff,

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v.

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ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION (Doc. No.
49) AND DENYING PLAINTIFF’S
MOTION TO AMEND (Doc. No. 44)

BLAKE WILLIAMS, San Diego Police
Officer; CHRIS CUMMINGS, San Diego
Police Officer,
Defendants.

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INTRODUCTION

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The matter comes before the Court on Report and Recommendation (the “Report”)

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from the Honorable Andrew G. Schopler, United States Magistrate Judge, filed pursuant

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to 28 U.S.C. § 636(b)(1). See Doc. No. 49 (recommending that this Court deny Plaintiff

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Marcus Briceno’s (“Plaintiff”) motion to amend. After careful consideration of the entire

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record, and for the reasons set forth below, this Court ADOPTS Judge Schopler’s Report

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(Doc. No. 49) in its entirety and DENIES Plaintiff’s motion to amend.

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BACKGROUND

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Plaintiff asserts that on September 19, 2013, Defendants violated his due process

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rights under the Fourteenth Amendment by using excessive force during his arrest. Doc.

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No. 1 at pg. 3. Plaintiff claims that Defendants grabbed, pushed, yanked, punched, and

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16cv1665-JAH (AGS)

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hauled him by his neck. Id. Plaintiff asserts that during this process, he was rendered

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unconscious and subsequently treated at a hospital. Id. at pg. 4. On June 27, 2016, Plaintiff

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filed his Complaint. Id. at pg. 1. Defendants filed a motion to dismiss on May 7, 2018

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alleging that Plaintiff’s Complaint is barred by statute of limitations. Doc. No. 23. On

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November 19, 2018, this Court issued an order denying Defendants’ motion to dismiss.

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See Doc. No. 34. Plaintiff filed a motion to amend on January 29, 2019. See Doc. No. 44.

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On March 20, 2019, Judge Schopler issued the Report and Recommendation. See Doc.

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No. 49. The Report and Recommendation gave parties fourteen (14) days to make

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objections to the Report. Id. To date, no objections have been filed.

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DISCUSSION
I.

Legal Standard

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The district court’s role in reviewing a magistrate judge’s report and

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recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the court “shall

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

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

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made by the magistrate [judge].” Id. The party objecting to the magistrate judge’s findings

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and recommendation bears the responsibility of specifically setting forth which of the

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magistrate judge’s findings the party contests. See Fed. R. Civ. P. 72(b). It is well-settled,

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under Rule 72(b), that a district court may adopt those portions of a magistrate judge’s

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report to which no specific objection is made, provided they are not clearly erroneous. See

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Thomas v. Arn, 474 U.S. 140, 149 (1985).

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When no objections are filed, the district court is not required to review the

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magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000

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n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s report and

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recommendation] is only required when an objection is made”); United States v. Reyna-

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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 636(b)(1)(c)

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“makes it clear that the district judge must review the magistrate judge’s findings and

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recommendations de novo if objection is made, but not otherwise”). This rule of law is

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well established within the Ninth Circuit and this district. See Hasan v. Cates, No. 11-cv-

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1416, 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in its entirety,

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and without review, a report and recommendation because neither party filed objections to

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the report despite having the opportunity to do so); accord Ziemann v. Cash, No. 11-cv-

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2496, 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. Poulos, No.

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08-cv-1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.).

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CONCLUSION

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Here, the record reflects that no party filed objections to the Report. Thus, in the

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absence of any objections, the Court ADOPTS the Report. For the reasons stated in the

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Report, which are incorporated herein by reference, Plaintiff’s motion to amend (Doc. No.

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40) is DENIED. The Clerk of Court shall enter judgment reflecting the foregoing.

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IT IS SO ORDERED.
DATED: April 29, 2019

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_________________________________
JOHN A. HOUSTON
United States District Judge

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16cv1665-JAH (AGS)