Magnetic v. State of Nevada et al

Filing 9

ORDER accepting and adopting Report and Recommendations re ECF No. 8 ; this action is dismissed without prejudice; Clerk directed to close this case and enter judgment. Signed by Judge Miranda M. Du on 10/23/2017. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 INFINITE MASTER MAGNETIC, aka JESSE JEROME POINTER, Case No. 2:16-cv-00640-MMD-PAL 11 Plaintiff, 12 13 14 v. STATE OF NEVADA, et al, ORDER ACCEPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE PEGGY A. LEEN Defendants. 15 16 Before the Court is the Report and Recommendation of United States Magistrate 17 Judge Peggy A. Leen (ECF No. 8) (“R&R”) relating to plaintiff’s failure to comply with the 18 court’s order giving Plaintiff until April 29, 2016, to file an Application to Proceed in 19 Forma Pauperis or pay the filing fee of $400.00. (ECF No. 7.) Plaintiff was advised that a 20 failure to comply with that order would result in a recommendation to dismiss this action. 21 (Id.) As of this date, Plaintiff has not complied with the court’s order, and Magistrate 22 Judge Leen submitted her R&R on May 10, 2016. (ECF No. 8.) Plaintiff had until May 27, 23 2016, to object to the R&R. (Id.) To date, no objection to the R&R has been filed. 24 This Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 26 timely objects to a magistrate judge’s report and recommendation, then the court is 27 required to “make a de novo determination of those portions of the [report and 28 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 1 to object, however, the court is not required to conduct “any review at all . . . of any issue 2 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 3 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 4 magistrate judge’s report and recommendation where no objections have been filed. See 5 United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 6 of review employed by the district court when reviewing a report and recommendation to 7 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 8 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 9 view that district courts are not required to review “any issue that is not the subject of an 10 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 11 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 12 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 13 which no objection was filed). 14 Nevertheless, this Court finds it appropriate to engage in a de novo review to 15 determine whether to adopt Magistrate Judge Leen’s R&R. Upon reviewing the R&R and 16 records in this case, this Court finds good cause to adopt the Magistrate Judge’s R&R in 17 full. 18 It is therefore ordered, adjudged and decreed that the Report and 19 Recommendation of Magistrate Judge Peggy A. Leen (ECF No. 8) is accepted and 20 adopted in its entirety. 21 It is further ordered that this action is dismissed without prejudice to the Plaintiff’s 22 ability to commence a new action in which he either pays the appropriate filing fee in full 23 or submits a completed application to proceed in forma pauperis. 24 25 26 It is further ordered that the Clerk of the Court close this case and enter judgment accordingly. DATED THIS 23rd day of October 2017. 27 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 28 2

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