Clark v. Guerrero

Filing 122

ORDER Adopting 102 Report and Recommendation. IT IS ORDERED that 115 Plaintiffs Motion for Entry of Clerks Default is DENIED. IT IS FURTHER ORDERED that Plaintiffs claim against Warden Williams for retaliation under the 1st Amendment is DISMISSE D without leave to amend. Plaintiffs claim against Warden Williams for a 14th Amendment due process violation related to the wardens failure to mail a grievance to the Office of the Inspector General is DISMISSED without leave to amend. Signed by Judge James C. Mahan on 12//13/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MICHAEL CLARK,

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2:09-CV-141 JCM (PAL)

Plaintiff,

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v.

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OFFICER GUERRERO,

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Defendant.

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ORDER

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Presently before the court is Magistrate Judge Leen’s order and report of findings and

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recommendation. (Doc. # 102). An objection to the report and recommendation was filed.

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(Doc. # 103).

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Also before the court is plaintiff Michael E. Clark’s motion for entry of clerk’s default.

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(Doc. # 115). Defendants have filed a response. (Doc. # 115). No reply has been filed.

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I.

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Report and Recommendation
This court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects

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to a magistrate judge’s report and recommendation, then the court is required to “make a de novo

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determination of those portions of the [report and recommendation] to which objection is made.”

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28 U.S.C. § 636(b)(1).

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Where a party fails to object, however, the court is not required to conduct “any review at

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all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149

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(1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a

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James C. Mahan
U.S. District Judge

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magistrate judge’s report and recommendation where no objections have been filed. See United

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States v. Reyna–Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F.Supp. 2d 1219, 1226 (D. Ariz.

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2003) (reading the Ninth Circuit’s decision in Reyna–Tapia as adopting the view that district

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courts are not required to review “any issue that is not the subject of an objection.”). Thus, if

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there is no objection to a magistrate judge’s recommendation, then this court may accept the

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recommendation without review. See e.g., Johnstone, 263 F.Supp.2d at 1226 (accepting, without

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review, a magistrate judge’s recommendation to which no objection was filed).

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Defendants objected to a procedural timeline and ruling in Magistrate Judge Leen’s order

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and report and recommendation. (See doc. # 103). Magistrate Judge Leen then resolved the

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issue with a new order. (Doc. # 105). Defendants did not oppose any substantive findings or

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recommendations dismissing certain claims by plaintiff, some with prejudice and some without

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prejudice.

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Nevertheless, this court finds it appropriate to engage in a de novo review to determine

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whether to adopt the recommendation of the magistrate judge. Upon reviewing the

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recommendation, defendants failure to object to any substantive findings, and plaintiff’s failure

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to object or to file a second amended complaint, the court finds good cause to adopt the

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magistrate’s findings and recommendations in full.

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II.

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Default
Plaintiff filed a motion with the court seeking entry of clerk’s default because defendants

had yet to answer his complaint. The court denies the motion.
Magistrate Judge Leen established a deadline date of September 28, 2012, for the

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defendants to answer plaintiff’s complaint. (Doc. # 105). Defendants timely answered. (See

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docs. # 110 & 112). Defendants are defending the action and no basis exists for entry of default.

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge
Leen’s order and report and recommendation (doc. # 102) be, and the same hereby, is

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James C. Mahan
U.S. District Judge

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ADOPTED in its entirety.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for
entry of clerk’s default (doc. # 115) be, and the same hereby, is DENIED.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff’s claim

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against Warden Williams for retaliation under the First Amendment be DISMISSED without

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leave to amend.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff’s claim

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against Warden Williams for a Fourteenth Amendment due process violation related to the

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warden’s failure to mail a grievance to the Office of the Inspector General be DISMISSED

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without leave to amend.
DATED December 13, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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