(PC) Outman v. Paramo ( 2019 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ROBERT H. OUTMAN, Case No.: 3:18-cv-02101-BAS-KSC CDCR #P-79939, 13 ORDER: Plaintiff, 14 vs. (1) APPROVING AND ADOPTING 15 REPORT AND DANIEL PARAMO, Warden; 16 RECOMMENDATION S. SANCHEZ, Captain; WILLIAMS, (ECF No. 32); AND 17 Correctional Counselor I; C. YORK, CCI; M. VILLATUERLE, CCII; B. VOGEL, 18 (2) GRANTING MOTION TO CCI; B. OLIVARRIA, Appeals DISMISS (ECF No. 22) 19 Coordinator; B. SELF; K. RODRIGUEZ, Psychologist; S. BAHRO, Ph.D 20 Psychologist; JOHN & JANE DOES 1-10, 21 Supervisory Mental Health Staff; JOHN & JANE DOES 1-10, 22 Custody Staff, 23 Defendants. 24 25 26 Plaintiff Robert H. Outman is a state prisoner proceeding pro se and in forma 27 pauperis. He brings claims under 42 U.S.C. § 1983 against various prison officials and 28 employees. On June 11, 2019, Defendants B. Vogel, R. Olivarria, S. Bahro, S. Searles 1 (formerly Sanchez), K. Rodriguez, B. Self, D. Paramo, M. Villafuerte, and C. York moved 2 to dismiss Plaintiff’s claims against them. (ECF No. 22.) 3 On November 5, 2019, U.S. Magistrate Judge Karen S. Crawford issued a Report 4 and Recommendation (“R&R”) recommending that this Court grant the motion to dismiss 5 as to all of the Defendants named in the Complaint.1 (ECF No. 32.) The R&R further 6 recommends that the Court grant Plaintiff leave to amend his Complaint. (Id. 18:9–20.) 7 The Magistrate Judge ordered that any objections to the R&R be filed no later than 8 December 2, 2019, and that any replies to the objections be filed no later than December 9 16, 2019. (R&R 19:22–26.) To date, the parties have not filed any objections or requests 10 for additional time to do so. 11 The Court reviews de novo those portions of the R&R to which objections are made. 12 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the 13 findings or recommendations made by the magistrate judge.” Id. But “[t]he statute makes 14 it clear that the district judge must review the magistrate judge’s findings and 15 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- 16 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also Schmidt v. Johnstone, 263 17 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, 18 the district court had no obligation to review the magistrate judge’s report). “Neither the 19 Constitution nor the statute requires a district judge to review, de novo, findings and 20 recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 21 22 1 The R&R determined that all Defendants are moving to dismiss Plaintiff’s Complaint: 23 Defendants Williams and Villafuerte have not been served with the Complaint. [Doc. No. 22-1, at p. 16.] In his Complaint, plaintiff misspelled defendant Villafuerte’s name as 24 Villatuerle. On the caption of defendants’ Motion to Dismiss, defendant Williams is not 25 listed as one of the defendants bringing the Motion; defendant Villafuerte is listed as one of the defendants bringing the Motion. Both defendants Williams and Villafuerte are 26 mentioned in the body of the Motion, so the Court will assume that defense counsel intended to include these defendants as parties to the Motion to Dismiss even though they 27 have not been served. 28 1 1121. “When no objections are filed, the de novo review is waived.” Marshall v. Astrue, 2 || No. 08-cv-1735, 2010 WL 841252, at *1 (S.D. Cal. Mar. 10, 2010) (Lorenz, J.) (adopting 3 ||report in its entirety without review because neither party filed objections to the report 4 despite the opportunity to do so). 5 In this case, the deadline for filing objections was December 2, 2019. However, the 6 || parties have not filed any objections or requests for additional time to do so. Consequently, 7 Court may adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. 8 ||Having nonetheless reviewed the R&R, the Court agrees with the R&R’s 9 ||recommendations. Accordingly, the Court hereby approves and ADOPTS the R&R in its 10 entirety (ECF No. 32). The Court also GRANTS Defendants’ motion to dismiss (ECF No. 11 The Court DISMISSES Plaintiffs Complaint in its entirety. Further, the Court grants 12 || Plaintiff leave to file a First Amended Complaint. If Plaintiff chooses to amend his 13 ||Complaint, he must file the First Amended Complaint no later than January 21, 2020. 14 ||The Court warns Plaintiff that _a failure to file a First Amended Complaint by 15 || January 21, 2020, will result in the Court dismissing this action and closing the case. 16 IT IS SO ORDERED. 17 /\ yy 18 || DATED: December 19, 2019 sii A 5 Haha, 6 19 United States District Judge 20 21 22 23 24 25 26 27 28 3 oo