Lavender v. Park

Filing 7

ORDER adopting and accepting in its entirety 6 Report and Recommendation; granting 5 IFP application; directing Clerk to file the 1 -1 complaint; dismissing without prejudice the complaint, without leave to amend; directing Clerk to close case. Signed by Judge Miranda M. Du on 10/2/2015. (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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MICHAEL LAVENDER,

Case No. 3:15-cv-00216-MMD-VPC
Plaintiff,

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v.
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LESLIE PARK,
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ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
VALERIE P. COOKE

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 (dkt. no. 6) (“R&R”) relating to plaintiff’s application to proceed in

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forma pauperis (dkt. no. 5) and pro se complaint (dkt. no. 1-1). Plaintiff had until August

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14, 2015, to object to the R&R (dkt. no. 6). 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 Cook’s R&R. Upon reviewing the R&R and

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the complaint, this Court finds good cause to accept and adopt the Magistrate Judge’s

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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. 6) is accepted and

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adopted in its entirety.

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It is further ordered that plaintiff’s application to proceed in form pauperis (dkt. no.
5) is granted. The Clerk is instructed to detach and file the complaint (dkt. no. 1-1).
It is further ordered that the complaint is dismissed without prejudice, without
leave to amend.
The Clerk is directed to close this case.
DATED THIS 2nd day of October 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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