Thomas-Weisner v. Gipson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JONQUIL THOMAS-WEISNER, Case No.: 3:19-cv-01999-JAH-BGS 12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION 14 CONNIE GIPSON, et al., 15 Defendants. (ECF No. 35). 16 For the reasons set forth below, this Court ADOPTS the Report and 17 Recommendation (“Report”) submitted by the magistrate judge pursuant to 28 U.S.C. § 18 636(b)(1), (ECF. No. 35), and Defendants’ Motion to Dismiss (“Motion”), (ECF No. 28), 19 is hereby GRANTED and this action is DISMISSED without leave to amend. 20 BACKGROUND 21 On January 3, 2022, Plaintiff Jonquil Thomas-Weisner (“Plaintiff”), a state prisoner 22 proceeding pro se and in forma pauperis, filed a second amended civil rights Complaint 23 (“SAC”) pursuant to 42 U.S.C. § 1983, alleging his rights under the United States 24 Constitution were violated at the Richard J. Donovan Correctional Center (“RJD”) by 25 Defendants Patrick Covello, the Warden of RJD, and Lance Eshelman, a community 26 resource manager at RJD. Plaintiff alleges a violation of the First Amendment’s Free 27 Exercise Clause when he was removed from his Religious Meal Alternative (“RMA”) diet. 28 1 On January 20, 2022, Defendants filed the instant motion to dismiss pursuant to 2 Federal Rule of Civil Procedure 12(b)(6), seeking dismissal of the SAC. (ECF No. 28). 3 Plaintiff filed an opposition to the motion to dismiss on April 11, 2022, (ECF No. 33), and 4 Defendants filed a reply in support of the motion to dismiss on April 20, 2022, (ECF No. 5 34). 6 On June 14, 2022, Magistrate Judge Bernard G. Skomal submitted the Report to this 7 Court recommending that Defendants’ motion to dismiss Plaintiff’s SAC be granted and 8 that this action be dismissed. (ECF. No. 35). 9 DISCUSSION 10 The district court’s role in reviewing a magistrate judge’s report and 11 recommendation is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 12 U.S.C. § 636(b)(1). When a party objects to the magistrate judge’s report and 13 recommendation, the district court “shall make a de novo determination of those portions 14 of the report . . . to which objection is made,” and may “accept, reject, or modify, in whole 15 or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 16 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). 17 When no objections are filed, the district court is not required to conduct a de novo 18 review of the magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 19 F.3d 992, 1000 n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s 20 report and recommendation] is only required when an objection is made”); United States 21 v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 22 636(b)(1)(c) “makes it clear that the district judge must review the magistrate judge’s 23 findings and recommendations de novo if objection is made, but not otherwise”). This rule 24 of law is well established within the Ninth Circuit and this district. See Hasan v. Cates, No. 25 11–cv–1416, 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in its 26 entirety, and without review, a report and recommendation because neither party filed 27 objections to the report despite having the opportunity to do so); accord Ziemann v. Cash, 28 1 No. 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 July 6, 2021. (ECF No. 35). To date, 4 no objections have been presented before the Court. Thus, in the absence of any objections, 5 the Court ADOPTS the Report and the motion to dismiss is GRANTED without leave to 6 amend. 1 See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] district court 7 should grant leave to amend . . . unless it determines that the pleading could not possibly 8 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 SAC, (ECF No. 28), is GRANTED, and the action is 12 DISMISSED without leave to amend. The Clerk of Court shall enter judgment reflecting 13 the foregoing. 14 IT IS SO ORDERED. 15 DATED: July 14, 2022 16 17 _________________________________ JOHN A. HOUSTON 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 1 Plaintiff was warned that he is being given a final opportunity to amend his complaint to 28