Lewis v. Allen et al

Filing 124

ORDER ADOPTING AND ACCEPTING 122 Report and Recommendation of the United States District Court Magistrate Judge. IT IS HEREBY ORDERED that Defendants' 62 / 64 Partial Motion to Dismiss Counts II and IV of Plaintiff's 10 Amended complaint are GRANTED. FURTHER ORDERED, Counts II and IV are DISMISSED WITHOUT PREJUDICE. Signed by Chief Judge Robert C. Jones on 1/31/2012. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY J. LEWIS,

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Plaintiff,
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v.
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J. ALLEN, et al.,
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Defendants.
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_______________________________________ )

3:10-CV-00083-RCJ(VPC)
ORDER

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Before the Court is the Report and Recommendation of the United States Magistrate Judge

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(#122) (“Recommendation”) entered December 16, 2011, in which the Magistrate Judge recommends

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that this Court grant Defendants’ Partial Motion to Dismiss Counts II and IV of Plaintiff’s Complaint

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(#62/64).

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No objection to the Report and Recommendation has been filed.

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I. DISCUSSION

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This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes

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a timely objection to the magistrate judge’s recommendation, then this Court is required to “make a de

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novo determination of those portions of the [report and recommendation] to which objection is made.”1

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Nevertheless, the statute does not “require[ ] some lesser review by [this Court] when no objections are

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filed.” Thomas v. Arn, 474 U.S. 140, 149–50 (1985). Instead, under the statute, this Court is not

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required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Id. at 149.

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For an objection to be timely, a party must serve and file it within 10 days after being served
with the magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1)(C).
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Similarly, the Ninth Circuit has recognized that a district court is not required to review a magistrate

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judge’s report and recommendation where no objections have been filed. See United States v. Reyna-

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Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court

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when reviewing a report and recommendation to which no objections were made); see also Schmidt v.

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Johnstone, 263 F.Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-

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Tapia as adopting the view that district courts are not required to review “any issue that is not the subject

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of an objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then this Court

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may accept the recommendation without review. See e.g., Johnstone, 263 F.Supp. 2d at 1226 (accepting,

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without review, a magistrate judge’s recommendation to which no objection was filed).

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In this case, there have been no objections filed to the Magistrate Judge’s Report and

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Recommendation.

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Recommendation (#122) and accepts it. Accordingly,

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Although no objection was filed, this Court has reviewed the Report and

IT IS HEREBY ORDERED that Defendants’ Partial Motion to Dismiss Counts II and IV of
Plaintiff’s Amended Complaint (#62/64) is GRANTED.

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IT IS FURTHER ORDERED that Counts II and IV are DISMISSED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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DATED: This 31st day of January, 2012.

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_______________________________
ROBERT C. JONES
Chief District Court Judge

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