Batiste v. Leavitte

Filing 5

ORDER accepting and adopting ECF No. 3 R&R; directing Clerk to detach and file ECF No. 1 -1 Complaint; dismissing with prejudice this action; directing Clerk to close case. Signed by Judge Miranda M. Du on 4/27/2017. (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 HARRY BATISTE, Case No. 2:17-cv-00217-MMD-NJK 10 11 12 13 Plaintiff, v. JUDGE MICHELLE LEAVITT, ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE NANCY J. KOPPE Defendant. 14 Before the Court is Magistrate Judge Nancy J. Koppe’s Report and 15 Recommendation (“R&R” or “Recommendation) (ECF No. 3), regarding Plaintiff’s request 16 to proceed in forma pauperis and proposed complaint (ECF Nos. 1, 1-1). Plaintiff had until 17 February 10, 2017 to file his objection. (ECF No. 3.) To date, no objection 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). Indeed, 25 the Ninth Circuit has recognized that a district court is not required to review a magistrate 26 judge’s report and recommendation where no objections have been filed. See United 27 States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 28 employed by the district court when reviewing a report and recommendation to which no 1 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 2 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 3 district courts are not required to review “any issue that is not the subject of an objection”). 4 Thus, if there is no objection to a magistrate judge’s recommendation, then the court may 5 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 6 (accepting, without review, a magistrate judge’s recommendation to which no objection 7 was filed). 8 Nevertheless, this Court finds it appropriate to engage in a de novo review in order 9 to determine whether to adopt the R&R. Upon review of the R&R and the proposed 10 complaint in this case, the Court agrees with the R&R and will adopt it in full. It is hereby ordered that the Magistrate Judge’s Report and Recommendation (ECF 11 12 No. 3) is accepted and adopted. It is further ordered that the Clerk detach and file Plaintiff’s complaint (ECF No. 1- 13 14 1). 15 It is further ordered that this action is dismissed with prejudice. 16 The Clerk is directed to close this case. 17 DATED THIS 27th day of April 2017. 18 19 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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