Jones v. Kroll et al

Filing 37

ORDER Adopting 28 Report and Recommendation; Order Granting 22 Defendant's Motion for Summary Judgment; Order Vacating Pretrial Conference; and Order of Dismissal. Signed by Judge Larry Alan Burns on 2/6/2019. (All non-registered users served via U.S. Mail Service) (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ELVIS JONES,

Case No.: 16cv2370-LAB (JLB)
Plaintiff,

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v.

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ORDER ADOPTING REPORT
AND RECOMMENDATION;

DR. KROLL, et al.,

ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT;

Defendants.

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ORDER VACATING PRETRIAL
CONFERENCE; AND

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ORDER OF DISMISSAL

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Plaintiff Elvis Jones, a prisoner in state custody, brought claims against

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several Defendants under 28 U.S.C. ' 1983.

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Magistrate Judge Jill Burkhardt for a report and recommendation. Claims against

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Dr. Krall (erroneously sued as Dr. Kroll) were dismissed, leaving Dr. Daub as the

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only Defendant. On July 6, 2018, Dr. Daub moved for summary judgment. After

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receiving

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recommendation (the “R&R”) on October 19, 2018, recommending that the motion

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be granted and Jones’ claims dismissed.

briefing,

Judge

Burkhardt

issued

The matter was referred to

her

14-page

report

and

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16cv2370-LAB (JLB)

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The R&R gave the parties until November 2 to file objections, and until

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November 16 to file a reply to any objections that were filed. Jones moved for an

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extension of time to file objections, which the Court granted. He filed a second

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motion for extension of time, which the Court also granted. But before he received

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the Court’s order granting a second extension, he filed his third motion for an

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extension of time (Docket no. 34) on December 6.

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On December 11, the Court ordered that a copy of the R&R be mailed to

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him, granted him a generous additional extension until January 24, 2019, which

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was longer than he requested. The order warned him that only extraordinary

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circumstances would justify any more extensions. It also pointed out that any

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objections he might want to make to this R&R were very likely based on facts he

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knew about, rather than legal standards or legal authorities he might have to spend

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a great deal of time researching.

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Jones filed no objections to the R&R, even after having been given ample

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time and opportunity to do so. A district court has jurisdiction to review a Magistrate

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Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b).

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“The district judge must determine de novo any part of the magistrate judge's

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disposition that has been properly objected to.” Id. “A judge of the court may

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accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This section does not

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require some lesser review by the district court when no objections are filed.

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Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The “statute makes it clear that the

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district judge must review the magistrate judge's findings and recommendations

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de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original).

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The Court has reviewed the R&R, finds it to be correct, and ADOPTS it. Dr.

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Daub’s motion for summary judgment is GRANTED and all claims against him are

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DISMISSED. Because this disposes of all pending claims, the action as a whole
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16cv2370-LAB (JLB)

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is DISMISSED. The Clerk is directed to enter judgment in favor of Defendants and

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against Plaintiff, and to close the docket.

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The pretrial conference currently on calendar for Monday, February 11, 2019

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at 12:00 noon is VACATED. All other pending dates are VACATED and all

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pending motions and requests are DENIED AS MOOT.

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IT IS SO ORDERED.
Dated: February 6, 2019

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Hon. Larry Alan Burns
Chief United States District Judge

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16cv2370-LAB (JLB)