Alonso v. El Centro Police Department

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 CHRISTOPHER K. ALONSO, Case No.: 23-CV-0006-CAB-LR 10 Plaintiff, ORDER: (1) ADOPTING REPORT 11 v. AND RECOMMENDATION [Doc. No. 26]; (2) GRANTING THE CITY 12 EL CENTRO POLICE DEPARTMENT, OF EL CENTRO’S MOTION TO et al., 13 DISMISS [Doc. No. 19] WITH LEAVE Defendants. TO AMEND; and (3) DISMISSING — 14 — PLAINTIFF’S CLAIMS AGAINST 15 THE INDIVIDUAL DEFENDANTS UNDER RULE 4(m) — 16 — — 17 — 18 On May 26, 2023, Defendant City of El Centro, erroneously sued as El Centro Police 19 Department, filed a motion to dismiss Plaintiff’s complaint. [Doc. No. 19.] On August 23, 20 2023, Magistrate Judge Lupe Rodriguez, Jr. prepared a Report and Recommendation 21 (“Report”) recommending that the motion to dismiss be granted with leave to amend, and 22 that the claims against the individual defendants be dismissed for failure to effect service 23 pursuant to Federal Rule of Civil Procedure 4(m). [Doc. No. 26.] The Report ordered that 24 the parties could file written objections to the Court by filing a document captioned 25 “Objections to Report and Recommendation.” See Report at 21. On September 20, 2023, 26 Plaintiff filed an uncaptioned and unsigned document that appears to re-assert some or all 27 of Plaintiff’s allegations from the complaint but does not explicitly reference the Report. 28 [Doc. No. 28.] 1 A district court’s duties concerning a magistrate judge’s report and recommendation 2 and a respondent’s objections thereto are set forth in Rule 72(b) of the Federal Rules of 3 Civil Procedure and 28 U.S.C. § 636 (b)(1). The Court reviews de novo those portions of 4 the Report to which objections are made. 28 U.S.C. § 636 (b)(1). The Court may “accept, 5 reject, or modify, in whole or in part, the findings or recommendations made by the 6 magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge must 7 review the magistrate judge’s findings and recommendations de novo if objection is made, 8 but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 9 banc) (emphasis in original). “Neither the Constitution nor the statute requires a district 10 judge to review, de novo, findings and recommendations that the parties themselves accept 11 as correct.” Id. “When no timely objection is filed, the court need only satisfy itself that 12 there is no clear error on the face of the record in order to accept the recommendation.” 13 Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 14 F.2d 196, 206 (9th Cir. 1974)). 15 Here, Defendants have not objected to the Report. It is not clear, however, whether 16 Plaintiff’s September 20, 2023, filing was intended to be objections to the Report. 17 Objections must be written and specific. See, e.g., Fed. R. Civ. P. 72(b)(2). It is well-settled 18 that a district court may adopt those portions of a magistrate judge’s report to which no 19 specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 20 U.S. 140 , 149 (1985). “Numerous courts have held that a general objection to the entirety 21 of a Magistrate Judge’s [report and recommendation] has the same effect as a failure to 22 object.” Alcantara v. McEwen, No. 12-cv-401-IEG(DHB), 2013 WL 4517861 , at *1 (S.D. 23 Cal. Aug. 15, 2013) (citing cases). Plaintiff’s filing does not reference the Report and 24 makes no specific objections thereto. The Court, therefore, could review the Report only 25 for clear error. Nevertheless, giving Plaintiff the benefit of the doubt, the Court has 26 conducted a de novo review of the Report and finds it to be thorough, complete, and an 27 accurate analysis of the allegations in the complaint and the legal issues presented in the 28 motion to dismiss. Accordingly, the Court hereby: 1 1. ADOPTS Magistrate Judge Rodriguez’s Report and Recommendation in its 2 entirety; 3 2. GRANTS the City of El Centro’s motion to dismiss Plaintiff's complaint; 4 3. DISMISSES Plaintiff's claims against the individual defendants for failure to 5 serve under Federal Rule of Civil Procedure 4(m) because Plaintiff did not 6 serve those Defendants by May 17, 2023, as set forth in the Court’s April 18, 7 2023, and April 27, 2023 Orders [Doc. Nos. 14, 16]; and, 8 4. GRANTS Plaintiff leave to file a first amended complaint against the City of 9 El Centro only no later than November 20, 2023. Plaintiff is cautioned that 10 the amended complaint must be complete and without reference to his 11 previous complaint. Claims not re-alleged in the amended complaint will be 12 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. 13 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 14 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 15 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to 16 amend which are not re-alleged in an amended pleading may be “considered 17 waived if not repled.”). Alternatively, if Plaintiff does not intend to file an 18 amended complaint, he may file a “Notice of Intent Not to Amend Complaint” 19 by this deadline. 20 If Plaintiff does not file an amended complaint or notice of intent not to amend by 21 |} November 20, 2023, the Court will assume that Plaintiff consents to dismissal of this action 22 || and order the Clerk to close this case. 23 IT IS SO ORDERED. 24 Dated: October 10, 2023 (WE — 25 — Hon. Cathy Ann Bencivengo 26 United States District Judge — 27 — — 28 —