Opinion
Case No. 04cv0914-LAB (CAB).
April 11, 2006
ORDER ADOPTING REPORT AND RECOMMENDATION [Dkt No. 45]
Plaintiff Derrick Richardson ("Richardson"), a state prisoner proceeding pro se with a 42 U.S.C. § 1983 civil rights Complaint, alleges violations of his First, Eighth, and Fourteenth Amendment constitutional rights, with pendant state law claims, associated with the manner in which he was restrained for transport to court appearances in April and May 2003 and the conduct thereafter of medical personnel, those conducting his administrative appeals, and prison administrators. Defendants filed a Motion To Dismiss pursuant to FED. R. CIV. P. ("Rule") 12(b)(6) for failure to state a claim and pursuant to (unenumerated) Rule 12(b) for failure to exhaust administrative remedies.
Magistrate Judge Cathy Ann Bencivengo prepared a thoroughly analyzed Report and Recommendation ("RR"), filed February 21, 2006, recommending dismissal of Richardson's Complaint on exhaustion grounds be denied, dismissal for failure to state a claim be granted with respect to the administrative personnel defendants, with respect to the access to courts claim, with respect to the Eighth Amendment claims on theories of excessive force and deliberate indifference, and dismissal of his state law claims be granted in light of the recommended dismissal of his federal claims, disposing of all claims and all defendants. Judge Bencivengo recommends the dismissal be without prejudice and with leave to amend. The deadline for filing Objections to the RR passed on March 10, 2006. As of the date of this Order, no Objections have been filed nor has the Court received any other communication from the parties.
A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Rule 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). That statutory provision does not require that the district court conduct some lesser review when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The Ninth Circuit has interpreted the language of 28 U.S.C. Section 636(b)(1), and has held the "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.) ( en banc), cert. denied, 540 U.S. 900 (2003) (emphasis added). Accordingly, as no Objections have been filed, the court ADOPTS the Report and Recommendation in its entirety.
Prior to Reyna-Tapia, the Ninth Circuit held that when no objections were filed, the district court could assume the correctness of the magistrate judge's findings of fact and decide the issues on the applicable law. See Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) ("A failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo"), citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). The overruling of theBarilla case was recognized in Brazzell v. Spaulding, 182 F.3d 924 (9th Cir. 1999). This court acknowledges thatReyna-Tapia does not directly address this authority, and that the Ninth Circuit may ultimately distinguish Reyna-Tapia and the Barilla-Britt line of authority. See Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1225, 1226 n. 5 (D. Ariz. 2003). Therefore, out of an abundance of caution, the Court has reviewed de novo the conclusions of law in the RR. Based on this review, the Court agrees with Judge Bencivengo's legal analysis and conclusions.
IT IS HEREBY ORDERED:
1. Defendants' Motion To Dismiss is GRANTED, without prejudice.
2. On or before May 12, 2006, Plaintiff may file a First Amended Complaint to remedy the deficiencies of the Complaint identified in the RR, and the matter remains referred to the Magistrate Judge pursuant to Civil Local Rule 72.3.
3. Failure to timely file a First Amended Complaint will result in dismissal of this action with prejudice.
IT IS SO ORDERED.