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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 MICHAEL MCINERNEY, Case No. 2:16-cv-00698-MMD-GWF Plaintiff, 10 v. 11 12 EIGHTH JUDICIAL DISTRICT COURT, et al., Defendants. ORDER ADOPTING AND ACCEPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE GEORGE FOLEY, JR. 13 14 Before the Court is the Report and Recommendation of United States Magistrate 15 Judge George Foley, Jr. (ECF No. 4) (“R&R”) relating to Plaintiff’s Application to Proceed 16 In Forma Pauperis and pro se complaint. Plaintiff had until March 29, 2017, to file an 17 objection. To date, no objection to the R&R has been filed. 18 This Court “may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 20 timely objects to a magistrate judge’s report and recommendation, then the court is 21 required to “make a de novo determination of those portions of the [report and 22 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 23 to object, however, the court is not required to conduct “any review at all . . . of any issue 24 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 25 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 26 magistrate judge’s report and recommendation where no objections have been filed. See 27 United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 28 of review employed by the district court when reviewing a report and recommendation to 1 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 2 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 3 view that district courts are not required to review “any issue that is not the subject of an 4 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 5 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 6 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 7 which no objection was filed). 8 Nevertheless, this Court finds it appropriate to engage in a de novo review to 9 determine whether to adopt Magistrate Judge Foley’s R&R. The Magistrate Judge 10 recommends dismissing Plaintiff’s § 1983 claim against the Eighth Judicial District Court 11 with prejudice. (ECF No. 4.) Upon reviewing the R&R and the records in this case, this 12 Court finds good cause to adopt the Magistrate Judge’s R&R in full. 13 It is therefore ordered, adjudged and decreed that the Report and 14 Recommendation of Magistrate Judge George Foley, Jr. (ECF No. 4) is accepted and 15 adopted in its entirety. 16 It is ordered that Plaintiff’s § 1983 claim against Defendant the Eighth Judicial 17 District Court is dismissed with prejudice. 18 DATED THIS 3rd day of May 2017. 19 20 21 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 2

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