Thomas-Weisner v. Gipson
- Proceeding
- district
- Area
- civil
- Panel
- John A. Houston (author)
Analysis
The court reviewed a magistrate judge's Report and Recommendation to dismiss a pro se prisoner's civil rights complaint for failure to state a claim. The court adopted the Report and granted the motion to dismiss without leave to amend because no objections were filed.
| What the court decided | Standard it applied | The model |
|---|---|---|
Adoption of the Magistrate Judge's Report and Recommendation“this Court ADOPTS the Report and Recommendation (“Report”) submitted by the magistrate judge pursuant to 28 U.S.C. § 636(b)(1), Doc. No. 20” | de novo | agree with court The court correctly applied the standard of review for a magistrate judge's report and recommendation. Under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), when no objections are filed, the district court is not required to conduct a de novo review. The court cited binding Ninth Circuit authority (Wang v. Masaitis, United States v. Reyna-Tapia) to support this procedural posture. Since the order states that no objections were filed, the court's decision to adopt the report without de novo review is procedurally sound. |
Granting of Defendants' Motion to Dismiss“Defendants’ Motion to Dismiss (“Motion”), Doc. No. 16, is hereby GRANTED” | unclear | unsure The order grants the motion to dismiss based on the magistrate judge's findings. The order itself does not recite the specific legal reasoning for the dismissal (failure to state a claim under the First and Fourteenth Amendments) but incorporates the Report by reference. Without the text of the Report, it is impossible to verify if the substantive legal analysis was correct. However, procedurally, the district court is bound to adopt the recommendation if no objections are raised, unless the findings are clearly erroneous or contrary to law. The order does not indicate any such error. |
Dismissal of the action without leave to amend“this action is DISMISSED without leave to amend” | unclear | unsure The court dismissed the case without leave to amend. It cited Doe v. United States for the proposition that leave to amend should be granted unless the pleading could not possibly be cured. However, the order does not explain *why* the court determined that amendment would be futile in this specific instance. It relies entirely on the incorporated Report. While the citation to Doe is appropriate for the general standard, the lack of specific reasoning in the order itself makes it difficult to assess if the futility determination was properly supported by the record presented in the order. However, given the adoption of the R&R, the decision is procedurally consistent with the magistrate's recommendation. |
The order itself: sound with gaps — The order is procedurally sound. It correctly identifies the standard of review for a magistrate judge's report and recommendation in the absence of objections, citing binding Ninth Circuit precedent. It properly adopts the report and grants the motion to dismiss. However, it is a 'sound with gaps' opinion because it does not independently articulate the substantive legal reasons for the dismissal or the futility of amendment, relying entirely on the incorporated Report. While this is permissible, it leaves the specific legal basis for the 'without leave to amend' decision implicit rather than explicit in the district court's own order.
How this analysis was made · dispute it
inconsistent with cited authorityOpinion
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)
10 Plaintiff, ORDER ADOPTING REPORT AND 11 v. RECOMMENDATION [Doc. No. 20] 12 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 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, 1 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 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 foregoing. 14 IT IS SO ORDERED. 15 16 |}DATED: — September 9, 2021 17 LL Mk 19 J A. HOUSTON JNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28