Rossman v. Duke et al
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)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 2:17-cv-02953-MMD-VCF
ELAINE DUKE, et al.,
ORDER ADOPTING AND ACCEPTING
REPORT AND RECOMMENDATION OF
Before the Court is the Report and Recommendation of United States Magistrate
Judge Cam Ferenbach (ECF No. 38) (“R&R”) relating to Plaintiff’s application to proceed
in forma pauperis (ECF No. 1) and complaint (ECF No. 1-1). Plaintiff had until December
26, 2017, to file an objection. To date, no objection to the R&R has been filed.1
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge’s report and recommendation, then the court is
required to “make a de novo determination of those portions of the [report and
recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails
to object, however, the court is not required to conduct “any review at all . . . of any issue
that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).
Indeed, the Ninth Circuit has recognized that a district court is not required to review a
magistrate judge’s report and recommendation where no objections have been filed. See
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.)
United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard
of review employed by the district court when reviewing a report and recommendation to
which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,
1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the
view that district courts are not required to review “any issue that is not the subject of an
objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then
the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.
Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to
which no objection was filed).
Nevertheless, this Court finds it appropriate to engage in a de novo review to
determine whether to adopt Magistrate Judge’s R&R, recommending dismissal for lack
of jurisdiction. Upon reviewing the R&R and records in this case, this Court finds good
cause to adopt the Magistrate Judge’s R&R in full.
Recommendation of Magistrate Judge Cam Ferenbach (ECF No. 3) is accepted and
adopted in its entirety.
It is ordered that this case is dismissed for lack of jurisdiction.
It is further ordered that Rossmann’s application to proceed in forma pauperis
(ECF No. 1) is denied as moot
DATED THIS 8th day of January 2018.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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