McInerney v. State of Nevada et al

Filing 14

ORDER - The Report and Recommendation (ECF No. 4 ) is accepted and adopted in its entirety. It is ordered that Plaintiff's § 1983 claim against Defendant the Eighth Judicial District Court is dismissed with prejudice. Signed by Judge Miranda M. Du on 5/3/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL MCINERNEY,

Case No. 2:16-cv-00698-MMD-GWF
Plaintiff,

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v.
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EIGHTH JUDICIAL DISTRICT COURT, et
al.,
Defendants.

ORDER ADOPTING AND ACCEPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
GEORGE FOLEY, JR.

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

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Judge George Foley, Jr. (ECF No. 4) (“R&R”) relating to Plaintiff’s Application to Proceed

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In Forma Pauperis and pro se complaint. Plaintiff had until March 29, 2017, to file an

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objection. 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 Foley’s R&R. The Magistrate Judge

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recommends dismissing Plaintiff’s § 1983 claim against the Eighth Judicial District Court

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with prejudice. (ECF No. 4.) Upon reviewing the R&R and the records in this case, this

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Court finds good cause to adopt the Magistrate Judge’s R&R in full.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge George Foley, Jr. (ECF No. 4) is accepted and

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adopted in its entirety.

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It is ordered that Plaintiff’s § 1983 claim against Defendant the Eighth Judicial

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District Court is dismissed with prejudice.

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DATED THIS 3rd day of May 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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