Estes v. Gaston et al

Filing 10

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)

1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF NEVADA
6
7
8

MICHAEL W. ESTES,

9
10
11

2:12-CV-1853 JCM (VCF)

Plaintiff(s),
v.
ROBERT GASTON, et al.,

12
Defendant(s).

13
14

ORDER

15

Presently is the report and recommendation of Magistrate Judge Ferenbach regarding

16

plaintiff’s motion for leave to proceed in forma pauperis, motion for appointment of counsel, and

17

screening plaintiff’s complaint. (Doc. # 9). No objections have been filed and the deadline has

18

expired.

19

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

20

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

21

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

22

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

23

28 U.S.C. § 636(b)(1).

24

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

25

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

26

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

27

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

28
James C. Mahan
U.S. District Judge

1

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

2

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

3

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

4

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

5

issue that is not the subject of an objection.”). Thus, if there is no objection to a magistrate judge’s

6

recommendation, then this court may accept the recommendation without review. See, e.g.,

7

Johnstone, 263 F. Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation

8

to which no objection was filed).

9

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

10

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

11

and the underlying briefs, this court finds good cause appears to ADOPT the magistrate’s findings

12

in full.

13

Accordingly,

14

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

15

recommendation of Magistrate Judge Ferenbach (doc. # 9) be, and the same hereby is, ADOPTED

16

in its entirety.

17
18
19
20

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.

21

IT IS FURTHER ORDERED that plaintiff, if he chooses to do so, be permitted to file an

22

amended complaint within thirty-three (33) days from the date of the clerk mails the plaintiff the

23

court’s order dismissing the complaint, or the case may be dismissed with prejudice.

24

DATED December 19, 2012.

25
26
UNITED STATES DISTRICT JUDGE
27
28
James C. Mahan
U.S. District Judge

-2-