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Jones v. Kroll, 16cv2370-LAB (JLB). (2019)

Court: District Court, N.D. California Number: infdco20190207976 Visitors: 5
Filed: Feb. 06, 2019
Latest Update: Feb. 06, 2019
Summary: ORDER ADOPTING REPORT AND RECOMMENDATION; ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; ORDER VACATING PRETRIAL CONFERENCE; AND ORDER OF DISMISSAL LARRY ALAN BURNS , Chief District Judge . Plaintiff Elvis Jones, a prisoner in state custody, brought claims against several Defendants under 28 U.S.C. 1983. The matter was referred to Magistrate Judge Jill Burkhardt for a report and recommendation. Claims against Dr. Krall (erroneously sued as Dr. Kroll) were dismissed, leaving Dr
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ORDER ADOPTING REPORT AND RECOMMENDATION;

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT;

ORDER VACATING PRETRIAL CONFERENCE; AND

ORDER OF DISMISSAL

Plaintiff Elvis Jones, a prisoner in state custody, brought claims against several Defendants under 28 U.S.C. § 1983. The matter was referred to Magistrate Judge Jill Burkhardt for a report and recommendation. Claims against Dr. Krall (erroneously sued as Dr. Kroll) were dismissed, leaving Dr. Daub as the only Defendant. On July 6, 2018, Dr. Daub moved for summary judgment. After receiving briefing, Judge Burkhardt issued her 14-page report and recommendation (the "R&R") on October 19, 2018, recommending that the motion be granted and Jones' claims dismissed.

The R&R gave the parties until November 2 to file objections, and until November 16 to file a reply to any objections that were filed. Jones moved for an extension of time to file objections, which the Court granted. He filed a second motion for extension of time, which the Court also granted. But before he received the Court's order granting a second extension, he filed his third motion for an extension of time (Docket no. 34) on December 6.

On December 11, the Court ordered that a copy of the R&R be mailed to him, granted him a generous additional extension until January 24, 2019, which was longer than he requested. The order warned him that only extraordinary circumstances would justify any more extensions. It also pointed out that any objections he might want to make to this R&R were very likely based on facts he knew about, rather than legal standards or legal authorities he might have to spend a great deal of time researching.

Jones filed no objections to the R&R, even after having been given ample time and opportunity to do so. A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This section does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original).

The Court has reviewed the R&R, finds it to be correct, and ADOPTS it. Dr. Daub's motion for summary judgment is GRANTED and all claims against him are DISMISSED. Because this disposes of all pending claims, the action as a whole is DISMISSED. The Clerk is directed to enter judgment in favor of Defendants and against Plaintiff, and to close the docket.

The pretrial conference currently on calendar for Monday, February 11, 2019 at 12:00 noon is VACATED. All other pending dates are VACATED and all pending motions and requests are DENIED AS MOOT.

IT IS SO ORDERED.

Source:  Leagle

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