Noland v. Social Security Disability

Filing 10

ORDER. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that 6 Magistrate Judge Ferenbach's R&R be, and the same hereby is, ADOPTED in its entirety. The clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 4/12/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LAURA NOLAND,

Case No. 2:17-CV-2743 JCM (VCF)

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Plaintiff(s),

ORDER

v.
SOCIAL SECURITY DISABILITY,
Defendant(s).

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Presently before the court is Magistrate Judge Ferenbach’s report and recommendation

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(R&R) to dismiss plaintiff Laura Noland’s complaint with prejudice. (ECF No. 6). Plaintiff has

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not filed a response, and the time for doing so has since passed.

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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.” 28 U.S.C. § 636(b)(1). If a party fails to object to a

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magistrate judge’s report and recommendation, however, the court is not required to conduct “any

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review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140,

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149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review

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a magistrate judge’s report and recommendation where no objections have been filed. See United

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States v. Reyna–Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003)

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(reading the Ninth Circuit’s decision in Reyna–Tapia as adopting the view that district courts are

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not required to review “any issue that is not the subject of an objection.”).

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Plaintiff did not file a timely objection to the report and recommendation. However, as

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plaintiff filed an amended complaint, this court finds it appropriate to engage in a de novo review

James C. Mahan
U.S. District Judge

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to determine whether to adopt the recommendation of the magistrate judge. See 28 U.S.C. §

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636(b)(1).

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An individual “may obtain a review of” a “final decision of the Commissioner of Social

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Security” in “a civil action commenced within sixty days after the mailing . . . of notice of such

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decision.” 42 U.S.C. § 405(g).

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On November 3, 2017, Judge Ferenbach dismissed plaintiff’s complaint with leave to

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amend, noting that “Plaintiff’s complaint fails to state (1) there was a final decision by the

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Commissioner and (2) this action was brought within the appropriate time.” (ECF No. 3).

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Plaintiff’s amended complaint states that the Social Security Appeals Panel denied her request for

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review on December 22, 2015. (ECF No. 9). Plaintiff brought this action almost two years later,

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on October 31, 2017. (ECF No. 1). Therefore, plaintiff’s complaint fails to state a claim upon

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which relief can be granted. See 42 U.S.C. § 405(g). The court will dismiss plaintiff’s complaint

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with prejudice.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge

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Ferenbach’s R&R (ECF No. 6) be, and the same hereby is, ADOPTED in its entirety.

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The clerk shall enter judgment accordingly and close the case.

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DATED April 12, 2018.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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