St. Sauver v. Byrd-Hunt

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 KENNETH ST. SAUVER Case No.: 20cv584-JAH (MDD) 12 Plaintiff, ORDER ADOPTING THE 13 v. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 14 BYRD-HUNT REGARDING DEFENDANT’S Defendant. 15 MOTION TO DISMISS (ECF No. 28) [16] 17 Pending before the Court is a Report and Recommendation (“Report”) submitted to 18 this Court by the Honorable Mitchell D. Dembin, United States Magistrate Judge, 19 recommending that the Court grant in part and deny in part Defendant’s motion for 20 summary judgment. 21 When reviewing a Magistrate Judge’s report and recommendation, the “district court 22 must make a de novo determination of those portions of the report . . . to which objection 23 is made, and may accept, reject, or modify in whole or in part, the findings or 24 recommendations made by the magistrate.” Love v. Scribner, 691 F. Supp. 2d 1215 , 1222 25 (S.D. Cal. 2010)1 (citing 28 U.S.C. § 636 (b)(1)). “However, in the absence of timely 26 objection, the Court ‘need only satisfy itself that there is no clear error on the face of the [28] | |}record in order to accept the report and recommendation.’” Frando v. Gore, No. 21-CV2 || 1434 JLS (KSC), 2022 WL 772963 , at *1 (S.D. Cal. Mar. 11, 2022) (citations omitted). 3 Here, potential objections were due by August 20, 2021, and replies by August 27, 4 ||2021. (ECF No. 28 at 18). The parties were “advised that the failure to file objections 5 || within the specified time may waive the right to raise those objections on appeal of the 6 || Court’s order.” /d. (citing Turner v. Duncan, 158 F 3d 449, 455 (9th Cir. 1998)). To date, 7 ||no objections have been filed, and the time for doing so has since expired. The Court has 8 ||reviewed the Report and finds that it is “thorough, well reasoned, and contains no clear 9 |lerror.” Frando, 2022 WL 772963 , at *1. In light of the absence of any objections, and 10 || Judge Dembin’s well-reasoned analysis, the Court ADOPTS the Report in its entirety and 11 GRANTS Defendant’s motion as to all of Plaintiff's First Amendment retaliation 12 ||claims; (2) GRANTS Defendant’s motion as to Plaintiff's claim that Defendant used 13 || excessive force in violation of the Eighth Amendment by ordering another inmate to attack 14 || Plaintiff; and (3) DENIES Defendant’s motion as to Plaintiff's claim that Defendant used 15 || excessive force in violation of the Eighth Amendment. 16 IT IS SO ORDERED. [17] 18 || DATED: June 16, 2022 bs Mb ste [20] 1 J HON. JOHN A. HOUSTON / United States District Judge