Yablonsky v. California Department of Correction & Rehabilitation et al

Filing 31

ORDER : (1) Adopting Report and Recommendation [Doc. No. 30 ]; Granting in Part and Denying in Part Motion to Dismiss [Doc. No. 17 ]; and (Granting Motion to Amend the Complaint [Doc. No. 29 ]. Signed by Judge Cathy Ann Bencivengo on 9/10/2019. (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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John Henry YABLONSKY

Case No.: 18cv1122-CAB-AGS
Plaintiff,

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v.

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ORDER: (1) ADOPTING REPORT
AND RECOMMENDATION [Doc.
No. 30]; GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS [Doc. No. 17]; and
GRANTING MOTION TO AMEND
THE COMPLAINT [Doc. No. 29]

CALIFORNIA DEPARTMENT OF
CORRECTION AND
REHABILITATION,

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Defendants.

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On November 16, 2018, Defendants D. Powell, G. Martinez, J. Robles, D.

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McGuire, R. Blahnik, and C. Tiscarnia (“Defendants”) filed a motion to dismiss the

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complaint for failure to state a claim. [Doc. No. 17.] On December 27, 2018, Plaintiff

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John Henry Yablonsky (“Plaintiff”) filed an opposition. [Doc. No. 21.] On February 19,

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2019, Defendants filed a reply. [Doc. No. 22.] On February 28, 2019, Plaintiff filed a

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sur-reply. [Doc. No. 23.] While the motion to dismiss was under submission, on August

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12, 2019, Plaintiff filed a motion to amend the complaint. [Doc. No. 29.] On August 21,

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2019, Magistrate Judge Andrew G. Schopler prepared a Report and Recommendation

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(“Report”) recommending that the motion to dismiss be granted in part and denied in

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part, and the motion to amend the complaint be granted. [Doc. No. 30.] The Report also

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18cv1122-CAB-AGS

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ordered that any objections were to be filed by September 4, 2019. [Report at 9.] To date,

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no objection has 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

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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. 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:

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(1) ADOPTS Magistrate Judge Schopler’s Report and Recommendation;

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(2) GRANTS IN PART AND DENIES IN PART the motion to dismiss as

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follows:

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a. The denied-access-to-courts claim is DISMISSED, with leave to amend;

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b. The federal-criminal-law claim is DISMISSED WITH PREJUDICE;

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18cv1122-CAB-AGS

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c. The 42 U.S.C. §1985(2) conspiracy claim is DISMISSED, with leave to
amend;
(3) Plaintiff’s motion to amend his complaint to add another cause of action is
GRANTED;
(4) Plaintiff shall file any Amended Complaint no later than October 2, 2019.

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Plaintiff’s Amended Complaint must be complete in itself without reference to his

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original pleading. Defendants not named and any claims not re-alleged in the Amended

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Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.

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v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”)

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IT IS SO ORDERED.
Dated: September 10, 2019

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