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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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INFINITE MASTER MAGNETIC, aka
JESSE JEROME POINTER,

Case No. 2:16-cv-00640-MMD-PAL

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Plaintiff,
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v.
STATE OF NEVADA, et al,

ORDER ACCEPTING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
PEGGY A. LEEN

Defendants.

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Peggy A. Leen (ECF No. 8) (“R&R”) relating to plaintiff’s failure to comply with the

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court’s order giving Plaintiff until April 29, 2016, to file an Application to Proceed in

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Forma Pauperis or pay the filing fee of $400.00. (ECF No. 7.) Plaintiff was advised that a

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failure to comply with that order would result in a recommendation to dismiss this action.

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(Id.) As of this date, Plaintiff has not complied with the court’s order, and Magistrate

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Judge Leen submitted her R&R on May 10, 2016. (ECF No. 8.) Plaintiff had until May 27,

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2016, to object to the R&R. (Id.) To date, no objection to the R&R has been filed.

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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).

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

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magistrate judge’s report and recommendation where no objections have been filed. See

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United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard

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of review employed by the district court when reviewing a report and recommendation to

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which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

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view that district courts are not required to review “any issue that is not the subject of an

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objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

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

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which no objection was filed).

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

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determine whether to adopt Magistrate Judge Leen’s R&R. Upon reviewing the R&R and

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records in this case, this Court finds good cause to adopt the Magistrate Judge’s R&R in

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full.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Peggy A. Leen (ECF No. 8) is accepted and

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adopted in its entirety.

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It is further ordered that this action is dismissed without prejudice to the Plaintiff’s

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ability to commence a new action in which he either pays the appropriate filing fee in full

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or submits a completed application to proceed in forma pauperis.

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It is further ordered that the Clerk of the Court close this case and enter judgment
accordingly.
DATED THIS 23rd day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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