Huluwazu, Ed.D v. Air Force et al

Filing 9

ORDER accepting and adopting in its entirety ECF No. 5 Report and Recommendations of Magistrate Judge Leen. Plaintiff's IFP Application ECF No. 1 is granted. Plaintiff will not be required to pay the filing fee. Clerk directed to file the Complaint ECF No. 1 -2 and the complaint is dismissed with prejudice. Clerk directed to close case. Signed by Judge Miranda M. Du on 11/29/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PAPA HULUWAZU,

Case No. 2:15-cv-01295-MMD-PAL
Plaintiff,

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v.

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE PEGGY LEEN

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AIR FORCE, et al,
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Defendants.
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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Peggy Leen (ECF No. 5) (“R&R” or “Recommendation”) recommending the Court

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dismiss this action with prejudice. Plaintiff filed an objection and an amendment to his

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objection. (ECF Nos. 7, 8).

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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 judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

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to object, however, the court is not required to conduct “any review at all . . . of any issue

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

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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

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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.

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

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district courts are not required to review “any 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 the court may

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

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(accepting, without review, a magistrate judge’s recommendation to which no objection

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was filed).

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In light of plaintiff’s objections, the Court has engaged in a de novo review to

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determine whether to adopt Magistrate Judge Leen’s Recommendation. The gist of the

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complaint involves a challenge of Plaintiff’s discharge from the Air Force and the

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Department of Veterans Affairs’ (“VA”) denial of certain benefits for Plaintiff’s service-

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related medical conditions. The Magistrate Judge recommends dismissing this action with

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prejudice for lack of subject matter jurisdiction. Having reviewed the R&R (ECF No. 5)

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and Plaintiff’s objections and amendment to the same (ECF Nos. 7, 8), the Court agrees

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with the Magistrate Judge and will adopt the R&R.

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It is therefore ordered, adjudged and decreed that the Report and Recommendation

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of Magistrate Judge Leen (ECF No. 5) is accepted and adopted in its entirety. Plaintiff’s

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IFP application (ECF No. 1) is granted. Plaintiff will not be required to pay the filing fee.

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The Clerk is directed to file the Complaint (ECF No. 1-2). The Complaint is dismissed with

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prejudice.

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The Clerk of Court is directed to close this case.
DATED THIS 29th day of November 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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