McDonald v. Olivas et al

Filing 190

ORDER adopting and accepting in its entirety ECF No. 187 R&R, denying ECF No. 169 Motion for Reconsideration; dismissing with prejudice this action; directing Clerk to close case. Signed by Judge Miranda M. Du on 7/15/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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REGINAL McDONALD,

Case No. 3:13-cv-00240-MMD-WGC
Plaintiff,

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v.
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OLIVAS, et al.,
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ORDER ADOPTING AND ACCEPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
WILLIAM G. COBB

Defendants.

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On March 26, 2015, after Plaintiff failed to appear at the status conference, the

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Magistrate Judge recommended dismissal of Plaintiff’s action with prejudice based on

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Plaintiff’s failure to appear at two court hearings and failure to notify the Court of his

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current address. (ECF No. 158.) The Court adopted the recommendation on May 11,

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2015. (ECF No. 165.) About six months later and over a month after he filed a Notice of

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Change of Address, Plaintiff moved for reconsideration. (ECF Nos. 167, 169.) Plaintiff

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asserts he has valid reasons for his failure to prosecute this action, including his physical

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and mental impairment, his homeless condition and his mistaken belief that he had legal

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representation. (ECF No. 169 at 1-3.) The Court construed Plaintiff’s motion for

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reconsideration as a request to reconsider the Magistrate Judge’s recommendation and

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referred the motion to Judge Cobb. (ECF No. 172.)

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The Magistrate Judge directed several unsuccessful attempts to contact Plaintiff

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to schedule a hearing on his motion for reconsideration and to make inquiries with

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Plaintiff’s putative counsel. (ECF No. 187.) Accordingly, the Magistrate Judge issued a

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Report and Recommendation (“R&R”), denying Plaintiff’s motion for reconsideration and

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recommending that the Court dismiss this action with prejudice. (ECF No. 187.) Plaintiff

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had until July 7, 2016 to file an objection. (Id.) Once again, Plaintiff failed to timely object.

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Moreover, as detailed in the R&R and reflected in the docket, mail sent to Plaintiff’s

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address as reflected in his latest Notice of Change of Address has been returned as

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“undeliverable.” (ECF Nos. 177, 178, 182, 183, 184, 185, 187, 188, 189.)

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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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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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Despite Plaintiff’s failure to object to the R&R, the Court has conducted another

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de novo review to determine whether to adopt Magistrate Judge Cobb’s R&R. Upon

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reviewing the R&R and records in this case, this Court finds good cause to adopt the

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Magistrate Judge’s R&R in full. Plaintiff has been given numerous opportunities to

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update the Court on his current address and to prosecute this action. Yet, Plaintiff

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continued to fail to even update his address after seeking reconsideration.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (dkt. no. 187) is accepted and

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adopted in its entirety.

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It is further ordered that this action is dismissed with prejudice.

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The Clerk is directed to close this case.

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DATED THIS 15th day of July 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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