Gathrite v. Wilson

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 DEANGELO LAMAR GATHRITE, Case No.: 3:19-cv-01852-JAH-NLS 12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION AND GRANTING DEFENDANTS’ 14 HEATHER WILSON, et al., MOTION FOR PARTIAL 15 Defendants. JUDGMENT ON THE PLEADINGS [16] [ECF NOS. 37 & 42] [17] 18 For the reasons set for below, this Court ADOPTS the Report and Recommendation 19 (“R&R”) submitted by the magistrate judge pursuant to 28 U.S.C. § 636 (b)(1), (ECF No. 20 42), and Defendants’ motion for partial judgment on the pleadings, (ECF No. 37), is hereby 21 GRANTED. 22 On October 22, 2020, Plaintiff DeAngelo Lamar Gathrite (“Plaintiff”), a state 23 prisoner proceeding pro se, filed a first amended complaint (“FAC”) under 42 U.S.C. § 24 1983, alleging his rights under the United States Constitution were violated at the Richard 25 J. Donovan Correctional Facility (“RJD”) by Dr. Heather Wilson and Officers Trejo and 26 Salinas (“Defendants”). Plaintiff pleads all counts against Defendants in both their official 27 and individual capacities. Plaintiff’s factual allegations center around an incident where 28 he claims that Defendants impermissibly confined him in a shower which strongly smelled 1 of urine and feces for over four hours without cause. 2 On October 11, 2022, Defendants filed the instant motion for partial judgment on 3 the pleadings (“Motion”) pursuant to Federal Rule of Civil Procedure 12(c) as to the claims 4 against Defendants in their official capacities. (ECF No. 37). On October 31, 2022, 5 Plaintiff filed an opposition to the Motion. (ECF No. 39). On November 15, 2022, 6 Defendants replied. (ECF No. 40). 7 On March 29, 2023, Magistrate Judge Nita L. Stormes submitted the R&R to this 8 Court recommending that Defendants’ Motion be granted. (ECF No. 42). 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 No. 11–cv–2496, 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. 1 || Poulos, No. 08—cv—1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.). 2 Here, any objections to the R&R were due by April 12, 2023. (ECF No. 42). To 3 no objections have been filed. Thus, in the absence of any objections, the Court 4 ||ADOPTS the R&R and Defendants’ Motion for partial judgment on the pleadings is 5 ||GRANTED. 6 CONCLUSION AND ORDER 7 For the reasons stated in the R&R, which are incorporated herein by reference, 8 || Defendants’ Motion for partial judgment on the pleadings, (ECF No. 37), is GRANTED. 9 IT IS SO ORDERED. 10 |} DATED: May 5, 2023 [11] B JOHN A. HOUSTON INITED STATES DISTRICT JUDGE