Opinion
Case No. 16-cv-01633-BAS-MDD
04-05-2017
MORIANO MILLARE, Plaintiff, v. G. STRATTON, et al., Defendants.
ORDER:
(1) APPROVING AND ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY (ECF No. 30); AND
(2) GRANTING IN PART AND DENYING IN PART DEFENDANTS R. OLSEN, F. FERNANDEZ, H. ASBURY, G. STRATTON, G. CHARLTON, T. VASQUEZ, C. MOORE, B. SELF, B. BAENZIGER, R. OLIVARRIA, K.A. SEIBEL, V. SOSA, AND O. SHELLAND'S MOTION TO DISMISS (ECF Nos. 16, 21)
Plaintiff Moriano Millare is a state prisoner proceeding pro se and in forma pauperis. He asserts various claims under 28 U.S.C. § 1983 and California state law against numerous corrections officials. On December 19, 2016, Defendants R. Olsen, F. Fernandez, H. Asbury, G. Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B. Baenziger, R. Olivarria, K.A. Seibel, and V. Sosa moved to dismiss counts ten through fifteen of Plaintiff's Complaint. (ECF No. 16.) Defendant O. Shelland later joined in the motion to dismiss as to those claims that are also alleged against him—counts twelve through fifteen. (ECF No. 21.)
On February 28, 2017, United States Magistrate Judge Mitchell D. Dembin issued a Report & Recommendation ("R&R") recommending this Court grant in part and deny in part the motion to dismiss. (ECF No. 30.) Specifically, the R&R first recommends the Court deny Defendants R. Olsen, R. Olivarria, B. Baenziger, B. Self, and V. Sosa's request to dismiss Plaintiff's tenth count for First Amendment retaliation. (Id. 24:9-11.) Second, the R&R similarly recommends the Court deny Defendants K.A. Seibel and G. Stratton's request to dismiss Plaintiff's eleventh count for First Amendment retaliation. (Id. 24:12-14.) Third, the R&R recommends the Court grant the thirteen Defendants' request to dismiss with prejudice Plaintiff's twelfth count for violation of the Eighth Amendment. (Id. 24:15-16.) Fourth, the R&R recommends the Court grant the thirteen Defendants' request to dismiss with prejudice Plaintiff's thirteenth, fourteenth, and fifteenth counts for violation of state law. (Id. 24:17-19.)
The magistrate judge ordered that any objections to the R&R be filed no later than March 22, 2017, and that any replies to the objections be filed no later than March 29, 2017. (R&R 24:22-25.) To date, the parties have not filed any objections or requests for additional time to do so.
The Court reviews de novo those portions of the R&R 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." Id. But "[t]he statute makes it clear that the district judge must 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); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Id. "When no objections are filed, the de novo review is waived." Marshall v. Astrue, No. 08-cv-1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so).
In this case, the deadline for filing objections was March 22, 2017. However, the parties have not filed any objections or requests for additional time to do so. Consequently, the Court may adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Having nonetheless reviewed the R&R, the Court agrees with the R&R's recommendations. Accordingly, the Court hereby approves and ADOPTS the R&R in its entirety (ECF No. 30). The Court therefore GRANTS IN PART and DENIES IN PART Defendants R. Olsen, F. Fernandez, H. Asbury, G. Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B. Baenziger, R. Olivarria, K.A. Seibel, and V. Sosa's motion to dismiss (ECF No. 16), which has been joined by Defendant O. Shelland (ECF No. 21), as follows:
(1) The Court DENIES Defendants R. Olsen, R. Olivarria, B. Baenziger, B. Self, and V. Sosa's request to dismiss Plaintiff's tenth count for First Amendment retaliation.
(2) The Court DENIES Defendants K.A. Seibel and G. Stratton's request to dismiss Plaintiff's eleventh count for First Amendment retaliation.
(3) The Court GRANTS Defendants R. Olsen, F. Fernandez, H. Asbury, G. Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B. Baenziger, R. Olivarria, K.A. Seibel, V. Sosa, and O. Shelland's request to dismiss with prejudice Plaintiff's twelfth count for violation of the Eighth Amendment. The Court dismisses Plaintiff's twelfth count against these Defendants without leave to amend. //
(4) The Court GRANTS Defendants R. Olsen, F. Fernandez, H. Asbury, G. Stratton, G. Charlton, T. Vasquez, C. Moore, B. Self, B. Baenziger, R. Olivarria, K.A. Seibel, V. Sosa, and O. Shelland's request to dismiss with prejudice Plaintiff's thirteenth, fourteenth, and fifteenth counts for violation of state law. The Court dismisses Plaintiff's thirteenth, fourteenth, and fifteenth counts against these Defendants without leave to amend.
IT IS SO ORDERED. DATED: April 5, 2017
/s/ _________
Hon. Cynthia Bashant
United States District Judge