Park v. United States

Filing 5

ORDER accepting and adopting 4 Report and Recommendation, granting 1 Motion/Application for Leave to Proceed in forma pauperis, directing Clerk to file Complaint, and dismissing Complaint with prejudice. Signed by Judge Miranda M. Du on 5/19/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Plaintiff,
v.

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Case No. 3:14-cv-00554-MMD-WGC

WARING PARK,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE WILLIAM G. COBB

UNITED STATES,
Defendant.

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Before the Court is Magistrate Judge William G. Cobb’s Report and

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Recommendation (“R&R”) (dkt. no. 4), regarding Plaintiff’s Application to Proceed In

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Forma Pauperis (“IFP”) (dkt. no. 1) and pro se Complaint (dkt. no. 1-1). The Court

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allowed Plaintiff to file any objections by April 30, 2015 (dkt. no. 4). No objections have

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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 in

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order to determine whether to adopt the R&R. The gist of Plaintiff’s Complaint is that he

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applied for benefits with the Social Security Administration (“SSA”) and has been

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informed that a decision has been made on his application although he would not be

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informed as to the nature of that decision. The R&R recommends dismissal of Plaintiff’s

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claims with prejudice because Plaintiff cannot assert any constitutional violations based

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on these allegations. Upon review of the R&R and the record in this case, the Court

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determines that it is appropriate to adopt the R&R in full.

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It is hereby ordered that the R&R (dkt. no. 4) is accepted and adopted. Plaintiff’s
IFP application (dkt. no. 1) is granted.

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It is further ordered that the Clerk shall file the Complaint (dkt. 1-1).

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It is further ordered that the Complaint is dismissed with prejudice. Dismissal of

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the Complaint does not bar Plaintiff from filing a new action for review of the

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Commissioner of Social Security’s final decision on Plaintiff’s application for benefits to

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the SSA after he receives a decision and has exhausted his administrative remedies.

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DATED THIS 19th day of May 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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