Yablonsky v. California Department of Correction & Rehabilitation ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 John Henry YABLONSKY Case No.: 18cv1122-CAB-AGS 12 Plaintiff, ORDER: (1) ADOPTING REPORT 13 v. AND RECOMMENDATION [Doc. No. 30]; GRANTING IN PART AND 14 CALIFORNIA DEPARTMENT OF DENYING IN PART MOTION TO CORRECTION AND 15 DISMISS [Doc. No. 17]; and REHABILITATION, GRANTING MOTION TO AMEND 16 Defendants. THE COMPLAINT [Doc. No. 29] 17 18 On November 16, 2018, Defendants D. Powell, G. Martinez, J. Robles, D. 19 McGuire, R. Blahnik, and C. Tiscarnia (“Defendants”) filed a motion to dismiss the 20 complaint for failure to state a claim. [Doc. No. 17.] On December 27, 2018, Plaintiff 21 John Henry Yablonsky (“Plaintiff”) filed an opposition. [Doc. No. 21.] On February 19, 22 2019, Defendants filed a reply. [Doc. No. 22.] On February 28, 2019, Plaintiff filed a 23 sur-reply. [Doc. No. 23.] While the motion to dismiss was under submission, on August 24 12, 2019, Plaintiff filed a motion to amend the complaint. [Doc. No. 29.] On August 21, 25 2019, Magistrate Judge Andrew G. Schopler prepared a Report and Recommendation 26 (“Report”) recommending that the motion to dismiss be granted in part and denied in 27 part, and the motion to amend the complaint be granted. [Doc. No. 30.] The Report also 28 1 ordered that any objections were to be filed by September 4, 2019. [Report at 9.] To date, 2 no objection has been filed, nor have there been any requests for an extension of time in 3 which to file an objection. 4 A district court’s duties concerning a magistrate judge’s report and 5 recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the 6 Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are 7 filed, the district court is not required to review the magistrate judge’s report and 8 recommendation. The Court reviews de novo those portions of the Report and 9 Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may 10 “accept, reject, or modify, in whole or in part, the findings or recommendations made by 11 the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge 12 must review the magistrate judge's findings and recommendations de novo if objection is 13 made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th 14 Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute 15 requires a district judge to review, de novo, findings and recommendations that the 16 parties themselves accept as correct.” Id. In the absence of timely objection, the Court 17 “need only satisfy itself that there is no clear error on the face of the record in order to 18 accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing 19 Campbel v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 20 Here, neither party has timely filed objections to the Report. Having reviewed it, 21 the Court finds that it is thorough, well-reasoned, and contains no clear error. 22 Accordingly, the Court hereby: 23 (1) ADOPTS Magistrate Judge Schopler’s Report and Recommendation; 24 (2) GRANTS IN PART AND DENIES IN PART the motion to dismiss as 25 follows: 26 a. The denied-access-to-courts claim is DISMISSED, with leave to amend; 27 b. The federal-criminal-law claim is DISMISSED WITH PREJUDICE; 28 1 c. The 42 U.S.C. §$1985(2) conspiracy claim is DISMISSED, with leave to 2 ||amend; 3 (3) Plaintiff's motion to amend his complaint to add another cause of action is 4 || GRANTED; 5 (4) Plaintiff shall file any Amended Complaint no later than October 2, 2019. 6 || Plaintiff's Amended Complaint must be complete in itself without reference to his 7 || original pleading. Defendants not named and any claims not re-alleged in the Amended 8 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 9 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 10 || pleading supersedes the original.”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 11 |}2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 12 ||amended pleading may be “considered waived if not repled.”) 13 IT IS SO ORDERED. 14 Dated: September 10, 2019 € 15 Hon. Cathy Ann Bencivengo 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28