Chu-Wy-Lughx v Mucasey

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS denying as moot 8 Motion to Appoint Counsel filed by Chu-Wy-Lughx, denying as moot 1 Application for Leave to Proceed in forma pauperis filed by Chu-Wy-Lughx; Dismissing with prejudice pla's complaint (doc #3). 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)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO CHU-WY-LUGHX, Plaintiff, vs. MICHAEL MUCASEY, Defendant. ) ) ) Case No. CV08-554-N-EJL ) ) ORDER ADOPTING ) REPORT AND RECOMMENDATION ) ) ) ) ) On December 15, 2009, United States Magistrate Judge Candy W. Dale issued a Report and Recommendation (Docket No. 10) in this matter. Pursuant to 28 U.S.C. 636(b)(1), the parties had ten days in which to file written objections to the Report and Recommendation. No objections were filed by the parties. 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." Moreover, this Court "shall make a de novo determination of those portions of the report which objection is made." Id. 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, 111 S.Ct. 2661 (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, 111 S.Ct. 2661 (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). In this case, no objections were filed so the Court need not conduct a de novo determination of the Report and Recommendation. ORDER ADOPTING REPORT AND RECOMMENDATION - Page 1 THEREFORE, IT IS HEREBY ORDERED that the Report and Recommendation (Docket No. 10 ) shall be INCORPORATED by reference and ADOPTED in its entirety. IT IS FURTHER ORDERED: 1. Plaintiff's Complaint (Docket No. 3) be DISMISSED IN ITS ENTIRETY WITH PREJUDICE; and 2. Plaintiff's Motion to Proceed In forma Pauperis (Docket No. 1) and the Motion to Appoint Counsel (Docket No. 8) are denied as moot. DATED: January 6, 2010 Honorable Edward J. Lodge U. S. District Judge ORDER ADOPTING REPORT AND RECOMMENDATION - Page 2

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