Wicklund v. Page et al

Filing 86

ORDER ADOPTING 85 REPORT AND RECOMMENDATIONS ; granting 69 Motion for Summary Judgment; denying as moot 79 Motion to Dismiss; denying as moot 83 Motion to Continue. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARK STEPHEN WICKLUND,
Case No. 1:09-CV-00671-EJL-CWD
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
JAMES F. PAGE, an individual, dba
ASCERTAIN POLYGRAPH
SERVICES, dba TREASURE VALLEY
POLYGRAPH, and IDAHO
DEPARTMENT OF CORRECTIONS,
Defendants.

On July 18, 2012, United States Magistrate Judge Candy W. Dale issued a Report
and Recommendation in this matter. (Dkt. 85.) Pursuant to 28 U.S.C. § 636(b)(1), the
parties had fourteen days in which to file written objections to the Report and
Recommendation. No objections were filed by the parties and the time for doing so has
passed.
DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.”
ORDER ADOPTING REPORT AND RECOMMENDATION - 1

Where the parties object to a report and recommendation, this Court “shall make a de
novo determination of those portions of the report which objection is made.” Id. Where,
however, no objections are filed the district court need not conduct a de novo review. In
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted
the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] 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. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “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.” Advisory Committee Notes to Fed. R.
Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)).

ORDER ADOPTING REPORT AND RECOMMENDATION - 2

In this case, no objections were filed so the Court is not required to conduct a de
novo determination of the Report and Recommendation. The Court has, however,
reviewed the Report and Recommendation and the record in this matter and finds no clear
error on the face of the record. Moreover, the Court finds the Report and
Recommendation is well-founded in the law based on the facts of this particular case and
this Court is in agreement with the same.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 85) shall be INCORPORATED by reference and ADOPTED in
its entirety.
IT IS THEREFORE ORDERED:
1)

Defendant’s Motion for Summary Judgment (Dkt. 69) is GRANTED and
judgment entered for Defendant.

2)

Defendant’s Motion to Dismiss (Dkt. 79) is DENIED as moot.

3)

Plaintiff’s Motion to Continue (Dkt. 83) is DENIED as moot.
DATED: August 23, 2012

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 3