Opinion
21cv15-LAB (KSC)
02-07-2022
THEODORE J. NEWTON, Plaintiff, v. OFFICER S. EATMON, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [Dkt. 22]
LARRY ALAN BURNS, UNITED STATES DISTRICT JUDGE
Theodore Newton, a state prison inmate proceeding pro se, brought this Section 1983 action alleging that he was assaulted by Defendant, Officer S. Eatmon. Eatmon moved to dismiss the Complaint in part under Fed.R.Civ.P. 12(b)(6) on the ground that it includes damages claims against Eatmon in his official capacity, claims that would violate the Eleventh Amendment. (Dkt. 16). The Motion was referred to Magistrate Judge Crawford for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Fed.R.Civ.P. 72(b). Currently before the Court is Magistrate Judge Crawford's Report and Recommendation (“R&R”), which recommends that Eatmon's Motion to Dismiss be denied as moot and that Eatmon be directed to respond to Newton's First Amended Complaint within 30 days of the Court's order adopting the R&R. (Dkt. 22). No. objection was filed prior to the December 6, 2021 deadline. For the reasons below, the Court ADOPTS IN FULL Judge Crawford's R&R.
Section 636 and Civil Rule 72(b) govern review of a magistrate's R&R on a dispositive motion. They require de novo review of any objected-to portion of the R&R. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). But they don't require de novo review if the parties don't object. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). To the contrary, parties acquiesce to an R&R by not raising a timely objection. See Id. (“[P]arties [who fail to object] . . . accept [the R&R] as correct”).
The Court has reviewed the R&R and the relevant filings. The R&R's reasoning appears sound and its disposition correct. The Court ADOPTS the R&R IN FULL. The Motion to Dismiss the Complaint is DENIED AS MOOT because the Complaint is no longer the operative pleading in this action. Eatmon must respond to the First Amended Complaint on or before March 9, 2022.
IT IS SO ORDERED.