Rossman v. Duke et al

Filing 6

ORDER ADOPTING AND ACCEPTING REPORT AND RECOMMENDATION - Ordered, adjudged and decreed that the Report and Recommendation of Magistrate Judge Cam Ferenbach (ECF No. 3 ) is accepted and adopted in its entirety. It is ordered that this case is dis missed for lack of jurisdiction. It is further ordered that Rossmann's application to proceed in forma pauperis (ECF No. 1 ) is denied as moot. Signed by Judge Miranda M. Du on 1/8/2018. (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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BRUD ROSSMANN,

Case No. 2:17-cv-02953-MMD-VCF
Plaintiff,

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v.
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ELAINE DUKE, et al.,

ORDER ADOPTING AND ACCEPTING
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. 38) (“R&R”) relating to Plaintiff’s application to proceed

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in forma pauperis (ECF No. 1) and complaint (ECF No. 1-1). Plaintiff had until December

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26, 2017, to file an objection. To date, no objection to the R&R has been filed.1

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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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last two documents that the Court mailed to Plaintiff (Advisory Letter (ECF
No. 2) and R&R (ECF No. 3)) were returned as undeliverable. (ECF Nos. 4, 5.)

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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).

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Nevertheless, this Court finds it appropriate to engage in a de novo review to

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determine whether to adopt Magistrate Judge’s R&R, recommending dismissal for lack

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of jurisdiction. Upon reviewing the R&R and records in this case, this Court finds good

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cause to adopt the Magistrate Judge’s R&R in full.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Cam Ferenbach (ECF No. 3) is accepted and

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adopted in its entirety.

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It is ordered that this case is dismissed for lack of jurisdiction.

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It is further ordered that Rossmann’s application to proceed in forma pauperis

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(ECF No. 1) is denied as moot
DATED THIS 8th day of January 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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