Thomas-Weisner v. Gipson et al
Filing
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ORDER adopting Report and Recommendation. The action is dismissed without leave to amend. Signed by Judge John A. Houston on 9/09/2021. (All non-registered users served via U.S. Mail Service)(jpp)
Case 3:19-cv-01999-JAH-BGS Document 21 Filed 09/09/21 PageID.173 Page 1 of 3
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Jonquil THOMAS-WEISNER,
Case No.: 19cv1999-JAH (BGS)
Plaintiff,
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v.
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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 20]
Connie GIPSON, et al.,
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Defendants.
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For the reasons set forth below, this Court ADOPTS the Report and
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Recommendation (“Report”) submitted by the magistrate judge pursuant to 28 U.S.C. §
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636(b)(1), Doc. No. 20, and Defendants’ Motion to Dismiss (“Motion”), Doc. No. 16, is
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hereby GRANTED and this action is DISMISSED without leave to amend.
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BACKGROUND
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On December 17, 2020, Plaintiff Jonquil Thomas-Weisner (“Plaintiff”), a state
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prisoner proceeding pro se and in forma pauperis, filed a first amended civil rights
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Complaint (“FAC”) pursuant to 42 U.S.C. § 1983, alleging his rights under the United
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States Constitution were violated at the Richard J. Donovan Correctional Center (“RJD”)
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by Defendants Patrick Covello and Lance Eshelman (“Defendants”) when Plaintiff was
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removed from his Religious Meat Alternative (“RMA”) diet after an alleged violation and
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was not provided an initial warning before removal. See Doc. No. 15.
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19cv1999-JAH (BGS)
Case 3:19-cv-01999-JAH-BGS Document 21 Filed 09/09/21 PageID.174 Page 2 of 3
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On January 4, 2021, Defendants filed the instant motion to dismiss pursuant to
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Federal Rule of Civil Procedure 12(b)(6), seeking dismissal of the FAC for failure to state
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a claim under the First Amendment and Fourteenth Amendment. See Doc. No. 16.
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Plaintiff filed a response in opposition to the motion to dismiss on January 21, 2021.
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See Doc. No. 18. Defendants subsequently filed their reply on March 4, 2021. See Doc.
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No. 19.
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On August 20, 2021, Magistrate Judge Bernard G. Skomal submitted the Report to
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this Court recommending that Defendants’ motion to dismiss Plaintiff’s FAC be granted
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and that this action be dismissed. See Doc. No. 20.
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DISCUSSION
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The district court’s role in reviewing a magistrate judge’s report and
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recommendation is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28
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U.S.C. § 636(b)(1). When a party objects to the magistrate judge’s report and
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recommendation, the district court “shall make a de novo determination of those portions of
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the report . . . to which objection is made,” and may “accept, reject, or modify, in whole or in
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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1);
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see also Fed. R. Civ. P. 72(b)(3).
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When no objections are filed, the district court is not required to conduct a de novo
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review of the magistrate judge’s report and recommendation. See Wang v. Masaitis, 416
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F.3d 992, 1000 n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s
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report and recommendation] is only required when an objection is made”); United States
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v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. §
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636(b)(1)(c) “makes it clear that the district judge must review the magistrate judge’s
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findings and recommendations de novo if objection is made, but not otherwise”). This rule
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of law is well established within the Ninth Circuit and this district. See Hasan v. Cates,
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No. 11–cv–1416, 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in
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its entirety, and without review, a report and recommendation because neither party filed
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objections to the report despite having the opportunity to do so); accord Ziemann v. Cash,
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19cv1999-JAH (BGS)
Case 3:19-cv-01999-JAH-BGS Document 21 Filed 09/09/21 PageID.175 Page 3 of 3
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No. 11–cv–2496, 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v.
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Poulos, No. 08–cv–1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.).
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Here, any objections to the Report were due by September 3, 2021. See Doc. No.
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20. To date, no objections have been presented before the Court. Thus, in the absence of
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any objections, the Court ADOPTS the Report and the motion to dismiss is GRANTED
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without leave to amend. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A]
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district court should grant leave to amend . . . unless it determines that the pleading could
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not possibly be cured by the allegation of other facts”).
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CONCLUSION AND ORDER
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For the reasons stated in the Report, which are incorporated herein by reference,
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Defendants’ motion to dismiss the FAC, Doc. No. 16, is GRANTED, and the action is
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DISMISSED without leave to amend. The Clerk of Court shall enter judgment reflecting
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the foregoing.
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IT IS SO ORDERED.
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DATED:
September 9, 2021
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_________________________________
JOHN A. HOUSTON
UNITED STATES DISTRICT JUDGE
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19cv1999-JAH (BGS)
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