Opinion
Civil No. 04cv0403-L(WMc).
March 20, 2006
Plaintiff Roy T. Marshall, a state prisoner proceeding pro se and in forma pauperis, filed this action under 42 U.S.C. § 1983 alleging his Eighth Amendment rights were violated by various officials of Richard J. Donovan Correctional Facility in San Diego, California. Defendants Peterson, Williams, and Cobb moved to dismiss the Complaint. On January 31, 2005, the Honorable William McCurine, Jr. filed a Report and Recommendation ("RR") recommending the motion be granted and the complaint dismissed for failure to exhaust administrative remedies. Plaintiff filed objections to the RR.
After Judge McCurine issued the RR, the Ninth Circuit decided Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005), cert. granted, ___ U.S. ___, 125 S.Ct. 647 (U.S. Nov. 14, 2004) (No. 05-416). In Ngo, the Ninth Circuit held that failure to timely exhaust a prison's administrative remedies does not procedurally bar a subsequent suit in federal court. Ngo, 403 F.3d at 627-31. By order dated June 27, 2005, this Court found Ngo compelled the conclusion Plaintiff had exhausted his administrative remedies, and denied in part the motion to dismiss.
On November 14, 2005, the United States Supreme Court granted certiorari in Ngo. Woodford v. Ngo, ___ U.S. ___, 125 S.Ct. 647 (U.S. Nov. 14, 2004) (No. 05-416). Defendants moved to stay this action pending a decision by the Supreme Court. In an RR dated January 20, 2006, Judge McCurine recommended this Court grant the motion to stay, finding a stay will not prejudice the Plaintiff and could substantially simplify questions of law at issue in this case, as well as preserve judicial resources.
The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). The district judge "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "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); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 n. 5 (D. Ariz. 2003) (applying Reyna-Tapia to a habeas corpus proceeding).
Plaintiff did not oppose the motion to stay and has not submitted objections to the RR. Having reviewed the record and applicable law, the Court concurs with Judge McCurine's analysis and finds a stay is warranted.
CONCLUSION
Having reviewed the record and applicable law, IT IS HEREBY ORDERED:
1. The RR is ADOPTED IN FULL.
2. Defendants' Motion to Stay is GRANTED for the reasons set forth in this order and in Judge McCurine's RR [dock. no 34].
3. This action is STAYED pending a decision by the United States Supreme Court in Woodford v. Ngo.
4. Within 10 days of the date the Supreme Court issues a decision in Woodford, counsel for Defendants shall file and serve a brief advising the Court and Plaintiff of the Woodford decision so the stay in this action may be lifted.
IT IS SO ORDERED.