Gravesbey v. Byrd-Hunt

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA RODNEY ALEXANDER GRAVESBY Case No.: 19cv372-CAB-RBM CDCR#E-20555 ORDER: (1) ADOPTING REPORT Plaintiff, 13 AND RECOMMENDATION [Doc.

14 OFFICER TOMICA BYRD-HUNT; C/O No. 29]; (2) DENYING WITHOUT PREJUDICE MOTION TO DISMISS NAVARRO; OFFICER P. COVELLO, COUNT 3 OF COMPLAINT [12]; Defendants.

18 On June 27, 2019, Defendant Byrd-Hunt filed a motion to dismiss Count 3 of the original complaint. [Doc. No. 12.] On September 23, 2019, Magistrate Judge Ruth Bermudez Montenego prepared a Report and Recommendation (“Report”) recommending that the motion to dismiss Count 3 of the initial complaint be denied without prejudice. [Doc. No. 29.] The Report also ordered that any objections were to be filed by October 7, 2019. [Report at 8.] To date, no objection has been filed, nor have there been any requests for an extension of time in which to file an objection.

25 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 Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge’s report and ||recommendation. The Court reviews de novo those portions of the Report and || Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may || ““accept, reject, or modify, in whole or in part, the findings or recommendations made by || the magistrate judge.” Jd. However, “[t]he statute makes it clear that the district judge 5 review the magistrate judge's findings and recommendations de novo if objection is || made, but not otherwise.” United States v. Reyna—Tapia, 328 F.3d 1114, 1121 (9th || Cir. 2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the || parties themselves accept as correct.” Jd. In the absence of timely objection, the Court || “need only satisfy itself that there is no clear error on the face of the record in order to || accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing || Campbel v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

13 Here, neither party has timely filed objections to the Report. Having reviewed it, || the Court finds that it is thorough, well-reasoned, and contains no clear error.

15 || Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Montenegro’s Report and || Recommendation [Doc. No. 29]; and (2) DENIES without prejudice Defendant’s motion || to dismiss Count 3 of the initial complaint [Doc. No. 12].

18 PLAINTIFF IS REMINDED that Magistrate Judge Montenegro has ordered him || to file either a Second Amended Complaint or an opposition to Defendant Byrd-Hunt’s || Motion to Dismiss the First Amended Complaint by November 7, 2019. [See Doc. No. 21 at 9.]

22 IT IS SO ORDERED.

23 ||Dated: November 4, 2019 € ZL Hon. Cathy Ann Bencivengo 25 United States District Judge