Hayes v. United States of America et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED that the 18 Report and Recommendation is adopted as the opinion of the Court. IT IS FURTHER ORDERED that the 22 Motion to Dismiss is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment accordingly. Signed by Senior Judge David C Bury on 1/29/15.(BAC)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DISTRICT OF ARIZONA Michael Hayes, ) ) Plaintiff, ) ) v. ) ) Social Security Administration, ) ) Defendant, ) _______________________________________) CV 14-1938 TUC DCB ORDER This matter was referred to Magistrate Judge Leslie A. Bowman, on April 30, 2014. Pursuant to Rules of Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil) 72.1(a), she issued a Report and Recommendation (R&R) on December 1, 2014. (Doc. 23: R&R). She recommends the case be dismissed because Plaintiff’s benefits were reduced in accordance with the law. STANDARD OF REVIEW The duties of the district court, when reviewing a Report and Recommendation of a Magistrate Judge, are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1). When the parties object to a Report and Recommendation (R&R), “‘[a] judge of the [district] 24 court shall make a de novo determination of those portions of the [R&R] to which objection is 25 made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no 26 27 28 objections are filed, the district court does not need to review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc). 1 The parties were sent copies of the R&R and instructed they had 14 days to file written 2 objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 (party objecting 3 to the recommended disposition has fourteen (14) days to file specific, written objections). 4 Plaintiff filed an objection on December 15, 2014, and on January 15, 2015, he filed a Notice 5 to Dismiss, pursuant to Rule 41. Federal Rule of Civil Procedure, Rule 41 provides for voluntary 6 dismissal by a plaintiff, without a court order if dismissal is sought before the opposing party 7 serves either an answer or a motion for summary judgment or a stipulation of dismissal is signed 8 by all parties who have appeared. Then, the notice or stipulation results in dismissal without 9 prejudice. Here, the Secretary filed a Motion to Dismiss. A review of the Plaintiff’s Notice to 10 Dismiss does not reflect service upon the Defendant. The Court contacted the Defendant and 11 there is no objection to dismissal of this action, without prejudice. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b), this Court makes a de novo determination as to those portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.") To the extent that no objection has been made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also, Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation). While there are no objections and review has, therefore, been waived, the Court nevertheless reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will not ordinarily waive question of law, but is a factor in considering the propriety of finding waiver)). 27 28 -2- 1 The Court finds the R&R to be thorough and well-reasoned, without any clear error in law 2 or fact. See United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (United States v. 3 Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(A) as providing 4 for district court to reconsider matters delegated to magistrate judge when there is clear error or 5 recommendation is contrary to law). As a matter of law, the amount Hayes received when he 6 first got benefits sets the amount he will receive for the rest of his life. And, in order to receive 7 his SSI disability benefit he was forced to apply for his retirement benefits early at a reduced 8 amount. (R&R (Doc. 23) at 3-4.) The Court accepts and adopts the R&R as the opinion of the 9 Court, pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated in the R&R, the Court dismisses 10 the case, with prejudice, based in the merits of Plaintiff’s claim. 11 Accordingly, 12 IT IS ORDERED that the Report and Recommendation (Doc. 18) is adopted as the 13 opinion of the Court. 14 15 16 17 IT IS FURTHER ORDERED that the Motion to Dismiss (Doc. 22) is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment accordingly. DATED this 29th day of January, 2015. 18 19 20 21 22 23 24 25 26 27 28 -3-

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