Thomas-Weisner v. Gipson et al

Filing 21

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)

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Case 3:19-cv-01999-JAH-BGS Document 21 Filed 09/09/21 PageID.173 Page 1 of 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 Jonquil THOMAS-WEISNER, Case No.: 19cv1999-JAH (BGS) Plaintiff, 10 11 v. 12 ORDER ADOPTING REPORT AND RECOMMENDATION [Doc. No. 20] Connie GIPSON, et al., 13 Defendants. 14 15 For the reasons set forth below, this Court ADOPTS the Report and 16 Recommendation (“Report”) submitted by the magistrate judge pursuant to 28 U.S.C. § 17 636(b)(1), Doc. No. 20, and Defendants’ Motion to Dismiss (“Motion”), Doc. No. 16, is 18 hereby GRANTED and this action is DISMISSED without leave to amend. 19 BACKGROUND 20 On December 17, 2020, Plaintiff Jonquil Thomas-Weisner (“Plaintiff”), a state 21 prisoner proceeding pro se and in forma pauperis, filed a first amended civil rights 22 Complaint (“FAC”) pursuant to 42 U.S.C. § 1983, alleging his rights under the United 23 States Constitution were violated at the Richard J. Donovan Correctional Center (“RJD”) 24 by Defendants Patrick Covello and Lance Eshelman (“Defendants”) when Plaintiff was 25 removed from his Religious Meat Alternative (“RMA”) diet after an alleged violation and 26 was not provided an initial warning before removal. See Doc. No. 15. 27 28 1 19cv1999-JAH (BGS) Case 3:19-cv-01999-JAH-BGS Document 21 Filed 09/09/21 PageID.174 Page 2 of 3 1 On January 4, 2021, Defendants filed the instant motion to dismiss pursuant to 2 Federal Rule of Civil Procedure 12(b)(6), seeking dismissal of the FAC for failure to state 3 a claim under the First Amendment and Fourteenth Amendment. See Doc. No. 16. 4 Plaintiff filed a response in opposition to the motion to dismiss on January 21, 2021. 5 See Doc. No. 18. Defendants subsequently filed their reply on March 4, 2021. See Doc. 6 No. 19. 7 On August 20, 2021, Magistrate Judge Bernard G. Skomal submitted the Report to 8 this Court recommending that Defendants’ motion to dismiss Plaintiff’s FAC be granted 9 and that this action be dismissed. See Doc. No. 20. 10 DISCUSSION 11 The district court’s role in reviewing a magistrate judge’s report and 12 recommendation is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 13 U.S.C. § 636(b)(1). When a party objects to the magistrate judge’s report and 14 recommendation, the district court “shall make a de novo determination of those portions of 15 the report . . . to which objection is made,” and may “accept, reject, or modify, in whole or in 16 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); 17 see also Fed. R. Civ. P. 72(b)(3). 18 When no objections are filed, the district court is not required to conduct a de novo 19 review of the magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 20 F.3d 992, 1000 n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s 21 report and recommendation] is only required when an objection is made”); United States 22 v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 23 636(b)(1)(c) “makes it clear that the district judge must review the magistrate judge’s 24 findings and recommendations de novo if objection is made, but not otherwise”). This rule 25 of law is well established within the Ninth Circuit and this district. See Hasan v. Cates, 26 No. 11–cv–1416, 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in 27 its entirety, and without review, a report and recommendation because neither party filed 28 objections to the report despite having the opportunity to do so); accord Ziemann v. Cash, 2 19cv1999-JAH (BGS) Case 3:19-cv-01999-JAH-BGS Document 21 Filed 09/09/21 PageID.175 Page 3 of 3 1 No. 11–cv–2496, 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. 2 Poulos, No. 08–cv–1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.). 3 Here, any objections to the Report were due by September 3, 2021. See Doc. No. 4 20. To date, no objections have been presented before the Court. Thus, in the absence of 5 any objections, the Court ADOPTS the Report and the motion to dismiss is GRANTED 6 without leave to amend. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] 7 district court should grant leave to amend . . . unless it determines that the pleading could 8 not possibly be cured by the allegation of other facts”). 9 CONCLUSION AND ORDER 10 For the reasons stated in the Report, which are incorporated herein by reference, 11 Defendants’ motion to dismiss the FAC, Doc. No. 16, is GRANTED, and the action is 12 DISMISSED without leave to amend. The Clerk of Court shall enter judgment reflecting 13 the foregoing. 14 IT IS SO ORDERED. 15 16 DATED: September 9, 2021 17 18 19 20 _________________________________ JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 3 19cv1999-JAH (BGS)

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