Johnson v. Department of Housing and Urban Development et al

Filing 11

ORDER Adopting in its entirety Magistrate Judge Leen's 8 Report and Recommendation.Plaintiff's Amended Complaint is Dismissed without prejudice. Signed by Judge James C. Mahan on 8/8/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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OSCAR A. JOHNSON,

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2:12-CV-1430 JCM (PAL)

Plaintiff(s),
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, et al.,

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Defendant(s).

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ORDER

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Presently before the court is the report and recommendation of Magistrate Judge Leen

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dismissing plaintiff’s amended complaint. (Doc. # 8). Pro se plaintiff Oscar A. Johnson objected.

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(Doc. # 9).

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Plaintiff’s amended complaint asserts claims against the Department of Housing and Urban

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Development (“HUD”), the Southern Nevada Regional Housing Authority (“SNRHA”), and the

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following employees of SNRHA: John Hill, Dwayne Alexander, and Steven Silverman. Plaintiff

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alleges that he rented a HUD-subsidized apartment unit with SNRHA and that he fulfilled all of his

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obligations under the lease.

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Plaintiff argues that SNRHA/HUD took no action when plaintiff filed complaints about the

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noise coming from a neighboring apartment which caused plaintiff to be sleep deprived and

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aggravated pre-existing permanent disabilities. The amended complaint seeks actual damages of

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$10,710, compensatory damages for aggravation of permanent disabilities in the amount of

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James C. Mahan
U.S. District Judge

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$107,100, and $500,000 in permanent damages.

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Magistrate Judge Leen screened the original in forma pauperis complaint and dismissed the

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complaint with leave to amend. (Doc. # 4). Plaintiff timely filed an amended complaint. (Doc. # 6).

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The magistrate judge then reviewed the amended complaint pursuant to 28 U.S.C. § 1915(a).

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The magistrate judge recommends dismissing the complaint because the amended complaint suffers

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the same deficiencies as the original complaint. Namely, the magistrate judge found that plaintiff

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failed to identify the statutory or constitutional right that is the basis of his § 1983 claim and

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therefore failed to state a claim upon which relief can be granted. Further, plaintiff did not clarify

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what constitutional right he believed each defendant violated and did not support each claim with

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factual allegations about each defendant’s actions.

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Plaintiff timely filed an objection. (See doc. # 9). Plaintiff’s objection lays out some factual

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allegations against defendants Hill, Alexander, and Silverman–a deficiency identified in the

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magistrate’s report and recommendation. Plaintiff’s objection also identifies the Fifth and Fourteenth

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amendments as the constitutional rights plaintiff believes to have been violated by defendants.

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However, plaintiff’s objection does not actually object to any portion of the magistrate’s report and

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recommendation.

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I.

Legal standard

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A party may file specific written objections to the findings and recommendations of a United

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States magistrate judge made pursuant to Local Rule IB 1–4. 28 U.S.C. § 636(b)(1)(B); LR IB 3–2.

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Upon the filing of such objections, the district court must make a de novo determination of those

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portions of the report to which objections are made. 28 U.S.C. § 636(b)(1)©; LR IB 3–2(b). The

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district court may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge. Id.

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

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. . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate

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

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James C. Mahan
U.S. District Judge

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Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the

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district court when reviewing a report and recommendation to which no objections were made); see

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also Schmidt v. Johnstone, 263 F.Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s

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decision in Reyna-Tapia as adopting the view that district courts are not required to review “any

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issue that is not the subject of an objection.”).

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

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

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without review, a magistrate judge’s recommendation to which no objection was filed).

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II.

Discussion

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This court finds it appropriate to engage in a de novo review to determine whether to adopt

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the recommendation of the magistrate judge. Upon reviewing the amended complaint and the

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magistrate’s report and recommendation, the court finds plaintiff’s amended complaint deficient for

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the reasons stated by the magistrate judge. While plaintiff’s objection demonstrates that these

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deficiencies might be remedied, the inclusion of these allegations in plaintiff’s objection does to

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remedy the deficient amended complaint.

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III.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the report and

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recommendation of Magistrate Judge Leen dismissing plaintiff’s amended complaint (doc. # 8) be,

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and the same hereby is, ADOPTED in its entirety.

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IT IS FURTHER ORDERED that plaintiff’s amended complaint (doc. # 6) be, and same
hereby is, DISMISSED without prejudice.
DATED August 8, 2013.

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

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