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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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 LAURA NOLAND, Case No. 2:17-CV-2743 JCM (VCF) 8 9 10 11 Plaintiff(s), ORDER v. SOCIAL SECURITY DISABILITY, Defendant(s). 12 13 Presently before the court is Magistrate Judge Ferenbach’s report and recommendation 14 (R&R) to dismiss plaintiff Laura Noland’s complaint with prejudice. (ECF No. 6). Plaintiff has 15 not filed a response, and the time for doing so has since passed. 16 This court “may accept, reject, or modify, in whole or in part, the findings or 17 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party fails to object to a 18 magistrate judge’s report and recommendation, however, the court is not required to conduct “any 19 review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 20 149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review 21 a magistrate judge’s report and recommendation where no objections have been filed. See United 22 States v. Reyna–Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 23 employed by the district court when reviewing a report and recommendation to which no 24 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) 25 (reading the Ninth Circuit’s decision in Reyna–Tapia as adopting the view that district courts are 26 not required to review “any issue that is not the subject of an objection.”). 27 Plaintiff did not file a timely objection to the report and recommendation. However, as 28 plaintiff filed an amended complaint, this court finds it appropriate to engage in a de novo review James C. Mahan U.S. District Judge 1 to determine whether to adopt the recommendation of the magistrate judge. See 28 U.S.C. § 2 636(b)(1). 3 An individual “may obtain a review of” a “final decision of the Commissioner of Social 4 Security” in “a civil action commenced within sixty days after the mailing . . . of notice of such 5 decision.” 42 U.S.C. § 405(g). 6 On November 3, 2017, Judge Ferenbach dismissed plaintiff’s complaint with leave to 7 amend, noting that “Plaintiff’s complaint fails to state (1) there was a final decision by the 8 Commissioner and (2) this action was brought within the appropriate time.” (ECF No. 3). 9 Plaintiff’s amended complaint states that the Social Security Appeals Panel denied her request for 10 review on December 22, 2015. (ECF No. 9). Plaintiff brought this action almost two years later, 11 on October 31, 2017. (ECF No. 1). Therefore, plaintiff’s complaint fails to state a claim upon 12 which relief can be granted. See 42 U.S.C. § 405(g). The court will dismiss plaintiff’s complaint 13 with prejudice. 14 Accordingly, 15 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge 16 Ferenbach’s R&R (ECF No. 6) be, and the same hereby is, ADOPTED in its entirety. 17 The clerk shall enter judgment accordingly and close the case. 18 DATED April 12, 2018. 19 20 __________________________________________ UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -2-

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