Chen v. Russell
ORDER accepting and adopting in its entirety ECF No. 14 R&R; denying ECF No. 7 IFP application; denying ECF No. 12 Request for Issuance of Summons; dismissing without prejudice this action; directing Clerk to close case. Signed by Judge Miranda M. Du on 1/12/2017. (Copies have been distributed pursuant to the NEF - KR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
XUE BAO CHEN ,
Case No. 3:15-cv-00260-MMD-VPC
JAMES T. RUSSELL, et al.,
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
VALERIE P. COOKE
Before the Court is the Report and Recommendation of United States Magistrate
Judge Valerie P. Cooke (“R&R”) relating to plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 7) and pro se complaint. (ECF No. 14.) Plaintiff had until November
18, 2016, to object to the R&R. (Id.) To date, no objection has been filed.
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge’s report and recommendation, then the court is
required to “make a de novo determination of those portions of the [report and
recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails
to object, however, the court is not required to conduct “any review at all . . . of any issue
that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed,
the Ninth Circuit has recognized that a district court is not required to review a magistrate
judge’s report and recommendation where no objections have been filed. See United
States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review
employed by the district court when reviewing a report and recommendation to which no
objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.
Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that
district courts are not required to review “any issue that is not the subject of an objection.”).
Thus, if there is no objection to a magistrate judge’s recommendation, then the court may
accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at
1226 (accepting, without review, a magistrate judge’s recommendation to which no
objection was filed).
Nevertheless, this Court finds it appropriate to engage in a de novo review to
determine whether to adopt Magistrate Judge Cooke’s R&R. The Magistrate Judge
recommended that Plaintiff’s motion for leave to proceed in forma pauperis be denied
because the application is insufficient, although Plaintiff paid the full filing fee. The
Magistrate Judge further recommends dismissal of Plaintiff’s complaint without prejudice.
Upon reviewing the R&R and the filings in this case, this Court finds good cause to adopt
the Magistrate Judge’s R&R in full.
It is therefore ordered, adjudged and decreed that the Report and
Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 14) is accepted and
adopted in its entirety.
It is ordered that Plaintiff’s motion for leave to proceed in forma pauperis (ECF No.
7) is denied.
It is further ordered the Plaintiff’s request for issuance of summons (ECF No. 12)
It is further ordered that this action is dismissed without prejudice.
The Clerk is directed to close this case.
DATED THIS 12th day of January 2017.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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