Hammler v. Hernandez et al

Filing 33

ORDER Adopting Report and Recommendation [Doc. No. 32 ] and Granting Motion to Dismiss [Doc. No. 28 ]. Signed by Judge Cathy Ann Bencivengo on 7/5/2019. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

Case No.: 18cv259-CAB-MDD
Plaintiff,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 32]
AND GRANTING MOTION TO
DISMISS [Doc. No. 28]

J. HERNANDEZ, et al.,

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Defendant.

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Plaintiff Allen Hammler (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, filed his complaint on February 2, 2018, pursuant to 42 U.S.C. §1983,

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claiming that two individuals retaliated against him in violation of the First Amendment

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and failed to protect him in violation of the Eighth Amendment. [Doc. No. 1 at 3-25.]

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On August 9, 2018, Defendants moved to dismiss the failure to protect claim and all

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claims against both defendants in their official capacities. [Doc. No. 15-1 at 5-7.] On

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December 11, 2018, Magistrate Judge Mitchell D. Dembin issued a Report and

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Recommendation (“Report”) to grant (in part) the motion to dismiss. [Doc. No. 21.] On

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January 9, 2019, this Court issued an order adopting the Report and granting in part the

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motion to dismiss. [Doc. No. 24.]

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On February 7, 2017, Plaintiff filed the First Amended Complaint (“FAC”). [Doc.
No. 25.] On March 8, 2019, Defendants filed a motion to dismiss Plaintiff’s failure to
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protect claim in the FAC. [Doc. No. 28.] On June 3, 2019, Magistrate Judge Dembin

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issued a Report and Recommendation to grant the motion to dismiss (“Report re FAC”).

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[Doc. No. 32.] The Report re FAC also ordered that any objection to the Report re FAC

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be filed by June 24, 2019. [Report re FAC at 12.] To date, no objection has been filed,

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nor have there been any requests for an extension of time in which to file an objection.
A district court’s duties concerning a magistrate judge’s report and

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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 re FAC. Having

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reviewed it, 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 Dembin’s Report and

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Recommendation [Doc. No. 32]; and (2) GRANTS the motion to dismiss the failure to

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protect claim in the FAC [Doc. No. 28]. As a result, Plaintiff’s only remaining claim is

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/////

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the First Amendment Retaliation claim against both Defendants. Defendants shall

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answer the FAC, as amended by this order, by July 26, 2019.

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IT IS SO ORDERED.
Dated: July 5, 2019

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