Estes v. Gaston et al
Filing
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ORDER adopting 9 Report and Recommendation. The Clerk shall file plaintiff's complaint. The complaint is DISMISSED without prejudice. Plaintiff, is he chooses to do so, is permitted to file an amended complaint within 33 days or the case may be dismissed with prejudice. Signed by Judge James C. Mahan on 12/19/12. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MICHAEL W. ESTES,
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2:12-CV-1853 JCM (VCF)
Plaintiff(s),
v.
ROBERT GASTON, et al.,
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Defendant(s).
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ORDER
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Presently is the report and recommendation of Magistrate Judge Ferenbach regarding
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plaintiff’s motion for leave to proceed in forma pauperis, motion for appointment of counsel, and
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screening plaintiff’s complaint. (Doc. # 9). No objections have been filed and the deadline has
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expired.
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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 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.”). Thus, if there is no objection to a magistrate judge’s
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recommendation, then this court may accept the recommendation without review. See, e.g.,
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Johnstone, 263 F. Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation
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to which no objection was filed).
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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 recommendation
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and the underlying briefs, this court finds good cause appears to ADOPT the magistrate’s findings
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in full.
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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 Ferenbach (doc. # 9) be, and the same hereby is, ADOPTED
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in its entirety.
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IT IS FURTHER ORDERED that the clerk of the court shall file plaintiff’s complaint (doc.
# 1-1).
IT IS FURTHER ORDERED that the complaint (doc. # 1-1) be, and the same hereby is,
DISMISSED without prejudice.
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IT IS FURTHER ORDERED that plaintiff, if he chooses to do so, be permitted to file an
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amended complaint within thirty-three (33) days from the date of the clerk mails the plaintiff the
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court’s order dismissing the complaint, or the case may be dismissed with prejudice.
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DATED December 19, 2012.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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