Fosmo v. County of Elko, Nevada et al

Filing 49

ORDER - It is ordered, adjudged and decreed that the # 47 Report and Recommendation is accepted and adopted in its entirety. It is ordered that this case be dismissed without prejudice. Signed by Judge Miranda M. Du on 12/15/2015. (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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RYAN FOSMO,

Case No. 3:14-cv-00468-MMD-VPC
Plaintiff,

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v.

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
VALERIE P. COOKE

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COUNTY OF ELKO, et al.,
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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 Valerie P. Cooke (“R&R”) (dkt. no. 47) relating to plaintiff’s failure to comply with

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the Court’s minute order following the hearing on October 1, 2015 (dkt. no. 43). On

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October 1, 2015, Magistrate Judge Cooke entered a minute order giving Plaintiff until

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November 2, 2015, to do one of the following: (1) File a substitution of counsel; (2) File a

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notice advising the Court that he intends to represent himself; or (3) File a notice

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advising the Court whether he intends to proceed with the litigation of this action. (Dkt.

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no. 43.) To date, Plaintiff has not complied with the Court’s order, and Magistrate Judge

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Cooke submitted her R&R. Plaintiff had until December 12, 2015, to object to the R&R.

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No objection to the R&R has been filed.

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

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determine whether to adopt Magistrate Judge Cooke’s R&R. The Magistrate Judge

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recommended that, based upon Plaintiff’s failure to file any notice with the Court or

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attempt to contact this Court in any manner, this case be dismissed without prejudice.

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Upon reviewing the R&R and underlying briefs showing Plaintiff’s failure to prosecute

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and abandoning this litigation, this Court finds good cause to adopt the Magistrate

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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 Valerie P. Cooke (dkt. no. 47) is accepted and

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adopted in its entirety.

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It is ordered that this case be dismissed without prejudice.

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The Clerk is directed to close this case.

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DATED THIS 15th day of December 2015.

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MIRANDA M. DU

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UNITED STATES DISTRICT JUDGE

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