Williams v. Resler et al

Filing 70

ORDER: (1) Adopting Report and Recommendation (Doc. No. 69 ); and (2) Granting In Part and Denying in Part Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 60 ) Signed by Judge Cathy Ann Bencivengo on 9/24/2018.(All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEVEN GREGORY WILLIAMS,

Case No.: 16cv2538-CAB-KSC

Plaintiff,

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v.

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ORDER: (1) ADOPTING REPORT
AND RECOMMENDATION [Doc.
No. 69]; AND (2) GRANTING IN
PART AND DENYING IN PART
MOTION TO DISMISS
PLAINTIFF’S SECOND AMENDED
COMPLAINT [Doc. No. 60]

S. RESLER, et al.,
Defendant.

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On May 10, 2018, Defendant S. Resler filed a motion to dismiss the Second

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Amended Complaint (“SAC”). [Doc. No. 60.] On July 20, 2018, Plaintiff filed an

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opposition. [Doc. No. 67.] On July 27, 2018, Defendant filed a reply to the opposition.

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[Doc. No. 68.] On August 24, 2018, Magistrate Judge Karen S. Crawford prepared a

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Report and Recommendation (“Report”) recommending that the motion to dismiss the

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SAC be granted in part and denied in part. [Doc. No. 69.] The Report also ordered that

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any objections were to be filed by September 14, 2018. [Report at 13.] To date, no

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objections have been filed, nor have there been any requests for an extension of time in

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which to file an objection.

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A district court’s duties concerning a magistrate judge’s report and
recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the
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Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are

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filed, the district court is not required to review the magistrate judge’s report and

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recommendation. The Court reviews de novo those portions of the Report and

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Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may

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

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the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge

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must review the magistrate judge's findings and recommendations de novo if objection is

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made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th

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Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute

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requires a district judge to review, de novo, findings and recommendations that the

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parties themselves accept as correct.” Id. In the absence of timely objection, the Court

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“need only satisfy itself that there is no clear error on the face of the record in order to

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accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing

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Campbel v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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Here, neither party has timely filed objections to the Report. Having reviewed it,

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the Court finds that it is thorough, well-reasoned, and contains no clear error.

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Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Crawford’s Report and

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Recommendation [Doc. No. 59]; and (2) GRANTS IN PART AND DENIES IN PART

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Defendant’s motion to dismiss the SAC [Doc. No. 60] as follows:

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1) The motion is GRANTED WITH LEAVE TO AMEND as to the events of
December 27, 2015;

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2) The motion is DENIED as to the events of January 20, 2016.

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3) If Plaintiff wishes to amend the SAC as to the events of December 17, 2015, he

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shall file a Third Amended Complaint (TAC) by October 26, 2018. Plaintiff is

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reminded that his pleading must be identified as his Third Amended Complaint,

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include Civil Case No. 16cv2538-CAB-KSC in its caption, name the all parties

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he wishes to sue, and allege all the claims he wishes to pursue in one single,

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clear, and concise pleading.
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4) If Plaintiff does not file a TAC by October 26, 2018, then Defendant shall
answer the SAC, as amended by this Order, by November 9, 2018.
IT IS SO ORDERED.
Dated: September 24, 2018

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