McInerney v. State of Nevada et al

Filing 39

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)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 MICHAEL McINERNEY, 10 11 12 13 Case No. 2:16-cv-00698-MMD-GWF Plaintiff, v. EIGHTH JUDICIAL DISTRICT COURT, et al., ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE GEORGE FOLEY, JR. Defendants. 14 15 Before the Court is Magistrate Judge George Foley, Jr.’s Report and 16 Recommendation (“R&R” or “Recommendation) (ECF No. 38), recommending dismissal 17 of claims against Defendant Swift Transportation (“Swift”). Plaintiff had until January 3, 18 2018, to file an objection. (ECF No. 38.) To date, no objections have been filed. 19 This Court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 21 timely objects to a magistrate judge’s report and recommendation, then the court is 22 required to “make a de novo determination of those portions of the [report and 23 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 24 to object, however, the court is not required to conduct “any review at all . . . of any issue 25 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, 26 the Ninth Circuit has recognized that a district court is not required to review a magistrate 27 judge’s report and recommendation where no objections have been filed. See United 28 States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 1 employed by the district court when reviewing a report and recommendation to which no 2 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 3 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 4 district courts are not required to review “any issue that is not the subject of an objection”). 5 Thus, if there is no objection to a magistrate judge’s recommendation, then the court may 6 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 7 (accepting, without review, a magistrate judge’s recommendation to which no objection 8 was filed). 9 Nevertheless, this Court finds it appropriate to engage in a de novo review in order 10 to determine whether to adopt the R&R. The Magistrate Judge recommends dismissing 11 claims asserted under 42 U.S.C. § 1983 against Swift because of the absence of 12 allegations that would support claims under § 1983 against a private transportation such 13 as Swift. (ECF No. 38 at 3.) Upon review of the R&R and filings in this case, the Court 14 agrees with the R&R and will adopt it in full. 15 16 It is therefore ordered that the Magistrate Judge’s Report and Recommendation (ECF No. 38) is accepted and adopted. 17 It is further ordered that Plaintiff’s amended complaint (ECF No. 7) is dismissed due 18 to Plaintiff’s failure to state a claim against Defendant Swift. Claims against Swift are 19 dismissed with prejudice. 20 21 22 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. 23 24 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 25 26 27 28 2

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