Sullivan v. MGM Mirage et al

Filing 4

ORDER Adopting 2 Report and Recommendation. The clerk of the court file the complaint. The complaint is dismissed with prejudice. Signed by Judge James C. Mahan on 3/27/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LEONARD P. SULLIVAN,

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2:13-CV-121 JCM (VCF)

Plaintiff(s),
v.
MGM MIRAGE, et al.,

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Defendant(s).

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ORDER
Presently before the court is the report and recommendation of Magistrate Judge Ferenbach.
(Doc. # 2). Pro se plaintiff Leonard P. Sullivan timely filed objections. (Doc. # 3).

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Plaintiff alleges causes of actions against the MGM Mirage and individual defendants Elaine

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S. McAnnany, Carl Knauff, and Michael Kogler. Plaintiffs causes of action are § 1983 claims,

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Occupational Safety & Health Administration (“OSHA”) claims, and claims for “preservation of

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evidence.”

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Magistrate Judge Ferenbach screened the in forma pauperis complaint. The magistrate judge

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dismissed the § 1983 claims because none of the individual defendants or corporate defendant MGM

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Mirage acted under color of state law or is an official that represent the government in some way.

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The magistrate judge dismissed the OSHA claims because OSHA violations “do not themselves

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constitute a private cause of action for breach.” Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th Cir.

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1994) (citing 29 U.S.C. § 653(b)(4)). Finally, the magistrate judge dismissed the “preservation of

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evidence” claim because Nevada does not recognize an independent tort for spoilation of evidence.

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James C. Mahan
U.S. District Judge

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Timber Tech Engineered Bldg. Prods. v. The Home Ins. Co., 118 Nev. 630, 633, 55 P.3d 952, 954

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(2002).

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The magistrate judge recommends dismissing the complaint with prejudice because it is clear

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that the deficiencies in the complaint cannot be cured by amendment. (See doc. # 2). Plaintiff

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timely filed an objection. (See doc. # 3). Plaintiff objects only to the dismissal of the OSHA claims,

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and does not take exception with the dismissal of the other two claims. (See id.).

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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 to

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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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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 record as a whole, the court finds plaintiff’s complaint is deficient for the reasons stated in

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the magistrate judge’s report and recommendation. The court further finds that the deficiencies in

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James C. Mahan
U.S. District Judge

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the complaint cannot be cured by amendment.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge

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Ferenbach’s report and recommendation (doc. # 2), be and the same hereby, be ADOPTED in its

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entirety.

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IT IS FURTHER ORDERED that the clerk of the court file the complaint (doc. # 1-1) as
recommended by the magistrate judge.

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IT IS FURTHER ORDERED that the complaint (doc. # 1-1) be dismissed with prejudice.

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DATED March 27, 2013.

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

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