McInerney v. State of Nevada et al
ORDER accepting and adopting ECF No. 38 Report and Recommendation; dismissing ECF No. 7 Amended Complaint; dismissing with prejudice claims against Swift; directing that this action proceed on Plaintiff's FCRA claim only against Defendant Hire Right, as enumerated in ECF No. 5 Complaint. Signed by Judge Miranda M. Du on 1/10/2018. (Copies have been distributed pursuant to the NEF - KR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 2:16-cv-00698-MMD-GWF
EIGHTH JUDICIAL DISTRICT COURT, et
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
GEORGE FOLEY, JR.
Before the Court is Magistrate Judge George Foley, Jr.’s Report and
Recommendation (“R&R” or “Recommendation) (ECF No. 38), recommending dismissal
of claims against Defendant Swift Transportation (“Swift”). Plaintiff had until January 3,
2018, to file an objection. (ECF No. 38.) To date, no objections have been filed.
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge’s report and recommendation, then the court is
required to “make a de novo determination of those portions of the [report and
recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails
to object, however, the court is not required to conduct “any review at all . . . of any issue
that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed,
the Ninth Circuit has recognized that a district court is not required to review a magistrate
judge’s report and recommendation where no objections have been filed. See United
States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review
employed by the district court when reviewing a report and recommendation to which no
objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.
Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that
district courts are not required to review “any issue that is not the subject of an objection”).
Thus, if there is no objection to a magistrate judge’s recommendation, then the court may
accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226
(accepting, without review, a magistrate judge’s recommendation to which no objection
Nevertheless, this Court finds it appropriate to engage in a de novo review in order
to determine whether to adopt the R&R. The Magistrate Judge recommends dismissing
claims asserted under 42 U.S.C. § 1983 against Swift because of the absence of
allegations that would support claims under § 1983 against a private transportation such
as Swift. (ECF No. 38 at 3.) Upon review of the R&R and filings in this case, the Court
agrees with the R&R and will adopt it in full.
It is therefore ordered that the Magistrate Judge’s Report and Recommendation
(ECF No. 38) is accepted and adopted.
It is further ordered that Plaintiff’s amended complaint (ECF No. 7) is dismissed due
to Plaintiff’s failure to state a claim against Defendant Swift. Claims against Swift are
dismissed with prejudice.
It is further ordered that this action will proceed on Plaintiff’s FCRA claim only
against Defendant Hire Right, as enumerated in his complaint (ECF No. 5).
DATED THIS 10th day of January 2018.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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