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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 SOUTHERN DISTRICT OF CALIFORNIA MARCUS D. BRICENO, 11 Case No.: 16cv1665-JAH (AGS) Plaintiff, 12 v. 13 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. 14 15 16 17 INTRODUCTION 18 The matter comes before the Court on Report and Recommendation (the “Report”) 19 from the Honorable Andrew G. Schopler, United States Magistrate Judge, filed pursuant 20 to 28 U.S.C. § 636(b)(1). See Doc. No. 49 (recommending that this Court deny Plaintiff 21 Marcus Briceno’s (“Plaintiff”) motion to amend. After careful consideration of the entire 22 record, and for the reasons set forth below, this Court ADOPTS Judge Schopler’s Report 23 (Doc. No. 49) in its entirety and DENIES Plaintiff’s motion to amend. 24 BACKGROUND 25 Plaintiff asserts that on September 19, 2013, Defendants violated his due process 26 rights under the Fourteenth Amendment by using excessive force during his arrest. Doc. 27 No. 1 at pg. 3. Plaintiff claims that Defendants grabbed, pushed, yanked, punched, and 28 1 16cv1665-JAH (AGS) 1 hauled him by his neck. Id. Plaintiff asserts that during this process, he was rendered 2 unconscious and subsequently treated at a hospital. Id. at pg. 4. On June 27, 2016, Plaintiff 3 filed his Complaint. Id. at pg. 1. Defendants filed a motion to dismiss on May 7, 2018 4 alleging that Plaintiff’s Complaint is barred by statute of limitations. Doc. No. 23. On 5 November 19, 2018, this Court issued an order denying Defendants’ motion to dismiss. 6 See Doc. No. 34. Plaintiff filed a motion to amend on January 29, 2019. See Doc. No. 44. 7 On March 20, 2019, Judge Schopler issued the Report and Recommendation. See Doc. 8 No. 49. The Report and Recommendation gave parties fourteen (14) days to make 9 objections to the Report. Id. To date, no objections have been filed. 10 11 DISCUSSION I. Legal Standard 12 The district court’s role in reviewing a magistrate judge’s report and 13 recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the court “shall 14 make a de novo determination of those portions of the report…to which objection is made,” 15 and “may accept, reject, or modify, in whole or in part, the findings or recommendations 16 made by the magistrate [judge].” Id. The party objecting to the magistrate judge’s findings 17 and recommendation bears the responsibility of specifically setting forth which of the 18 magistrate judge’s findings the party contests. See Fed. R. Civ. P. 72(b). It is well-settled, 19 under Rule 72(b), that a district court may adopt those portions of a magistrate judge’s 20 report to which no specific objection is made, provided they are not clearly erroneous. See 21 Thomas v. Arn, 474 U.S. 140, 149 (1985). 22 When no objections are filed, the district court is not required to review the 23 magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000 24 n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s report and 25 recommendation] is only required when an objection is made”); United States v. Reyna- 26 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 636(b)(1)(c) 27 “makes it clear that the district judge must review the magistrate judge’s findings and 28 2 16cv1665-JAH (AGS) 1 recommendations de novo if objection is made, but not otherwise”). This rule of law is 2 well established within the Ninth Circuit and this district. See Hasan v. Cates, No. 11-cv- 3 1416, 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in its entirety, 4 and without review, a report and recommendation because neither party filed objections to 5 the report despite having the opportunity to do so); accord Ziemann v. Cash, No. 11-cv- 6 2496, 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. Poulos, No. 7 08-cv-1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.). 8 CONCLUSION 9 Here, the record reflects that no party filed objections to the Report. Thus, in the 10 absence of any objections, the Court ADOPTS the Report. For the reasons stated in the 11 Report, which are incorporated herein by reference, Plaintiff’s motion to amend (Doc. No. 12 40) is DENIED. The Clerk of Court shall enter judgment reflecting the foregoing. 13 14 IT IS SO ORDERED. DATED: April 29, 2019 15 16 17 18 _________________________________ JOHN A. HOUSTON United States District Judge 19 20 21 22 23 24 25 26 27 28 3 16cv1665-JAH (AGS)

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