Mixon v. Brown et al

Filing 6

ORDERED that the Report and Recommendation (ECF No. 3 ) is adopted and accepted. The Complaint (ECF No. 4 ) is dismissed with leave to amend. Plaintiff is given 33 days from the date the Clerk mails Plaintiff a copy of this Order within which t o file an amended complaint. ( Order mailed 5/27/2017; Amended complaint due by 5/30/2017. ) The Clerk is directed to not issue the summons on the amended complaint pending screening. Signed by Judge Miranda M. Du on 4/27/2017. (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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ANTONIO LEE MIXON JR.,

Case No. 2:16-cv-02711-MMD-VCF
Plaintiff,

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v.
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ELIZABETH BROWN, et al.,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
CAM FERENBACH

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

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Judge Cam Ferenbach (ECF No. 3) (“R&R”) relating to Plaintiff’s pro se complaint (ECF

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No. 1-1). Plaintiff filed his objection on December 8, 2016 (“Objection”). (ECF No. 5.)

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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).
In light of Plaintiff’s objection, this Court finds it appropriate to engage in a de

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novo

review

to

determine

whether

to

adopt

Magistrate

Judge

Ferenbach’s

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Recommendation. The Magistrate Judge recommends dismissal of the complaint with

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leave to amend because Plaintiff failed to allege sufficient facts to support his claims.

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(ECF No. 3.) In his objection, Plainitff claims his bail motion is an exhibit in this case

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(ECF No. 3 at 2), but no such motion is attached to his complaint. Regardless, attaching

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Plaintiff’s bail motion to a proposed complaint will not cure the deficiencies of his

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complaint as identified in the Recommendation. The Court agrees with the Magistrate

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Judge that the complaint fails to state a claim and adopts the Recommendation.

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It is therefore ordered that the Magistrate Judge’s Report and Recommendation
(ECF No. 3) is adopted and accepted.

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It is ordered that the Complaint (ECF No. 4) is dismissed with leave to amend.

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It is further ordered that, pursuant to Local Rule 15-1, should Plaintiff choose to

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file an amended complaint, it must be complete in itself without reference to any previous

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complaint. Plaintiff is given thirty three (33) days from the date the Clerk mails Plaintiff a

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copy of this Order within which to file an amended complaint remedying, if possible, the

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defects

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Recommendation. Any allegations, parties, or requests for relief from prior papers that

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are not carried forward in the amended complaint will no longer be before the Court.

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Plaintiff’s amended complaint will be subject to screening. The Clerk of the Court is

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directed to not issue the summons on the amended complaint pending screening.

in

the

complaint

explained

in

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the

Magistrate

Judge’s

Report

and

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Plaintiff’s failure to file an amended complaint within the prescribed time period
will result in dismissal of this action with prejudice.
DATED THIS 27th day of April 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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